New Zealand Case Law: Decisions & Judgments

Topic

Unborn beneficiaries

Legal area

Court

10 Dec 2021

RE M I CLIFFORD TRUST 2 [2021] NZHC 1931

Citation

[2021] NZHC 1931
Court

High Court

Leave to use the originating application procedure was granted because the application was appropriately dealt with by that procedure as it is in the interests of justice (ensuring a just, speedy and inexpensive determination), the Court may appoint an independent solicitor to represent unborn beneficiaries, and conditional service by email with required acknowledgements was appropriate to avoid unnecessary costs.
21 Jul 2020

RE W J FRANCIS FAMILY TRUST & FRANCIS PROPERTY TRUST EX PARTE MORTLOCK [2020] NZHC 1759

Citation

[2020] NZHC 1759
Court

High Court

Because the proposed directions could adversely affect the interests of unborn great-grandchildren and great-great-grandchildren, the court would not dispense with representation for those unborn beneficiaries and therefore appointed Stephen Hunter QC to represent them (subject to his acceptance); procedural timetable was adjusted to allow counsel to prepare.
4 May 2020

HOPE GOWER FAMILY TRUST & GORDON GOWER FAMILY TRUST [2020] NZHC 890

Citation

[2020] NZHC 890
Court

High Court

Given unanimous consent of existing beneficiaries of full capacity, the limited and speculative nature of any detriment to potential future grandchildren, the significant trust asset values and the practical need to allow family members to act as trustees to preserve and potentially increase trust value, the Court, exercising its wide discretion under s64A, approved the proposed variations as not detrimental to those who cannot legally consent.
4 Apr 2017

RE GLOVER [2017] NZHC 641

Citation

[2017] NZHC 641
Court

High Court

Because the trustees, adult beneficiaries and counsel for the unborn grandchildren consented, and the Court was satisfied the proposed variations would assist the functioning of the trusts and would not adversely affect the future beneficial interests of unborn grandchildren, the Court approved the variations under s64A Trustee Act 1956.
29 Nov 2016

BROWN v HALLET [2016] NZHC 2861

Citation

[2016] NZHC 2861
Court

High Court

The Court approved the Deed of Variation under s 64A because the variation is not to the detriment of the minor and unborn beneficiaries when viewed as a whole: adult beneficiaries consent, the trust has substantial capital mitigating any loss of future income/capital, the impact on minors/unborn is very limited, and indirect benefits (family welfare and honour) weigh in favour of approval; accordingly the court may ratify past payments and confirm the settlor's income beneficiary status.
5 May 2009

EWINGTON & ANOR V SCHULZ AND ORS HC AK CIV 2008-404-6596

Citation

openlaw-a15a2c6e_bed7_4036_acb1_881e218e7f17.pdf
Court

High Court

The Court exercised its wide discretion under s64A of the Trustee Act 1956 to approve the proposed Deed of Family Arrangement because the arrangement, taken as a whole, benefits the parties, has effective informed consent from adults, adequately protects the minor and contingent/unborn beneficiaries through bespoke trust arrangements, and the construction of the will (ordinary meaning of 'survive') did not require withholding distribution until the life tenant's death.

New Zealand Case Law

RE M I CLIFFORD TRUST 2 [2021] NZHC 1931

RE W J FRANCIS FAMILY TRUST & FRANCIS PROPERTY TRUST EX PARTE MORTLOCK [2020] NZHC 1759

HOPE GOWER FAMILY TRUST & GORDON GOWER FAMILY TRUST [2020] NZHC 890

RE GLOVER [2017] NZHC 641

BROWN v HALLET [2016] NZHC 2861

EWINGTON & ANOR V SCHULZ AND ORS HC AK CIV 2008-404-6596