New Zealand Case Law: Decisions & Judgments

Topic

Discretionary beneficiaries

Legal area

Court

19 Oct 2023

WALLACE v WALLACE [2023] NZHC 2928

Citation

[2023] NZHC 2928
Court

High Court

The Court held that the trustees were entitled to seek directions under s133 and, applying Re Honoris Trust principles and statutory guidance, found no basis to freeze assets or dismiss the proceeding; discretionary beneficiaries had no vested interest absent appointment, trustees were not deadlocked or conflicted to a degree requiring surrender of discretion, and it was appropriate to bring the Vesting Day forward and order distribution because the fund was modest, the Appointor had not appointed discretionary beneficiaries, and distribution would avoid further family conflict.
14 Dec 2020

CARSWELL v CARSWELL [2020] NZHC 3307

Citation

[2020] NZHC 3307
Court

High Court

The Court found on evidence (solicitor letter, memoranda of wishes and conduct) that the settlors intended to be discretionary beneficiaries and that the deed failed to record that common intention; accordingly, rectification was necessary and appropriate under the doctrine of rectification, Part 19 High Court Rules and the Court's inherent jurisdiction to include the settlors as discretionary beneficiaries.
5 Jun 2020

LAW v LAW [2020] NZHC 1243

Citation

[2020] NZHC 1243
Court

High Court

The court held the settlor's memorandum, read as a whole, showed the $500 weekly payment to the survivor was intended to ensure her financial security and was not limited to being paid only from trust income; the trustees had therefore acted on an incorrect interpretation and the court gave directions ordering sale of the existing property and purchase of a Masonic Trust Village property to be held in the adult children's names with a protected life occupation right for the first respondent, a $20,000 lump sum to her, adult children to meet outgoings, and equal distribution of remaining trust…
17 Feb 2020

JUDD & ANOR v COWLEY [2020] NZHC 184

Citation

[2020] NZHC 184
Court

High Court

The trust deed contained operative mistakes: it omitted the settlor as a discretionary beneficiary, failed to restrict 'children' to natural born children and issue, and omitted contingent nephews; contemporaneous solicitor file notes, the settlor's memorandum of wishes and the settlor's transfers of property constituted convincing evidence of her intentions; the mistakes were causative and of sufficient gravity to justify rectification; accordingly the court exercised its discretion to order rectification to give effect to the settlor's intentions but declined to include the nephews because…
10 Dec 2018

MCLAREN, MCLAREN AND BROWN AS TRUSTEES OF THE MCLAREN FAMILY TRUST v MCLAREN [2018] NZCA 570

Citation

[2018] NZCA 570
Court

Court of Appeal

Leave to appeal was declined because the applicants failed to show the pleaded causes of action were clearly untenable on the assumed facts; the high threshold for summary dismissal was not met and the s 56 leave criteria were not satisfied given the need for factual and evidentiary foundation to decide the contested legal propositions.
6 Jul 2018

MCLAREN v MCLAREN [2018] NZHC 1668

Citation

[2018] NZHC 1668
Court

High Court

Leave to appeal was dismissed because the defendants failed to show an arguable error of law that could be resolved without a trial; the contested issues are fact dependent and require evidence at trial, the high threshold for interlocutory leave was not met and there is no matter of sufficient general or public importance to justify appeal delay.
15 Feb 2017

MCLAREN v MCLAREN [2017] NZHC 161

Citation

[2017] NZHC 161
Court

High Court

The appointor in this factual matrix owed a limited set of fiduciary obligations (to act in good faith, with diligence, and to avoid improper, irrelevant or irrational considerations) when removing beneficiaries; Bruce breached those duties by removing his parents as discretionary beneficiaries, so the parents must be reinstated; the appointments of additional trustees were properly made and will not be set aside; other remedies sought were dismissed.
10 Aug 2015

WALKER & ORS v RESTIEAUX & ORS [2015] NZHC 1875

Citation

[2015] NZHC 1875
Court

High Court

The trust deed did not express the parties' true intention because clause 14.1(c) was an obvious drafting error that risked excluding Mr and Mrs Restieaux despite their express naming as beneficiaries; all relevant parties consented and the court exercised its discretion to rectify clause 14 to exclude only the settlor from benefit and to grant full relief under s73 to the trustees for past distributions up to the date of rectification.
21 Mar 2013

GREGORY NOEL RATHBUN, ALLAN MCKENZIE FRASER AND ANDREW MCKENZIE FRASER AS TRUSTEES OF THE BALFOUR TRUST HC AK CIV 2013-404-174

Citation

openlaw-f7d62d5d_b16a_43d6_bf58_1860821aa72d.pdf
Court

High Court

Where a trust deed authorises appointment of 'bodies' as discretionary beneficiaries and contains no clear prohibition on distributing income or capital to them, the Court will approve a s64A variation to confirm trustees may distribute to non‑natural discretionary beneficiaries where the variation benefits, and does not detrimentally affect, those lacking capacity; a s66 direction was unnecessary here.
17 Aug 2012

KA NO 4 TRUSTEE LIMITED AND KA NO 3 TRUSTEE LIMITED V THE FINANCIAL MARKETS AUTHORITY COA CA115/2012

Citation

COA CA115/2012
Court

Court of Appeal

The Court of Appeal affirmed the High Court: s 60H(1)(f) must be read broadly in light of the protective statutory purpose so that assets held in discretionary trusts can, on a reasonably arguable factual basis, be treated as held "on behalf of" associated persons for preservation orders; the KA4 sham pleading was sufficiently particularised to proceed to discovery and a substantive hearing, whereas the KA3 sham claim was not pursued on appeal.