New Zealand Case Law: Decisions & Judgments

Topic

Discretionary trusts

Legal area

Court

18 May 2023

TĀMATI KRUGER ON BEHALF OF TŪHOE TE URU TAUMATUA TRUST v PAKI NIKORA ON BEHALF OF TE KAUNIHERA KAUMĀTUA O TŪHOE [2023] NZCA 179

Citation

[2023] NZCA 179
Court

Court of Appeal

The Court held that land held by the Trust is not 'General land owned by Māori' because the Trust's beneficiaries are discretionary and do not beneficially own a fee simple estate, and the Trust was not constituted in respect of identified parcels of General land owned by Māori at its establishment; accordingly s236(1)(c) does not apply and the Māori Land Court lacked jurisdiction over the Trust's administration, so the Court of Appeal allowed the trustees' appeal and set aside the Māori Land Court orders.
16 Dec 2021

KAIN v PUBLIC TRUST [2021] NZCA 685

Citation

[2021] NZCA 685
Court

Court of Appeal

The Court held (1) the High Court directions regarding recognition of the equality principle and limitations about taking into account prior distributions ([108](b),(c) and [109](d)) and the direction on subsequent wishes ([134](b)) were correct and are upheld; (2) the High Court's [134](a) wording was ambiguous and is replaced: Public Trust is entitled to take into account the settlor's wishes and must read and understand them, but may only take them into account to the extent they are not inconsistent with the trust's terms and purposes; trustees retain independent judgment.
20 Sept 2012

CLAYDON V SYMONDS HC CHCH CIV-2012-409-000891

Citation

openlaw-160ba77c_7b73_4489_a668_ebdfab93330e.pdf
Court

High Court

The application to remove the trustees was dismissed because there was no evidence of breach of trust or compelling grounds for removal; trustees were acting prudently in preserving capital and exercising discretion for the beneficiary's long‑term interests; a breakdown in relationship and loss of beneficiary confidence alone did not justify removal; although an exclusion clause limiting s68 applications may be contrary to public policy, no directions were required in the circumstances.
24 May 2012

ASHWORTH V LAMBIE HC CHCH CIV-2010-409-001986

Citation

openlaw-aed5e12f_0685_400f_8ce0_326a3c65ecf1.pdf
Court

High Court

The deceased did not breach his moral duty to the plaintiffs: the testamentary provisions, prior gifts and the near-certain future benefits from the Inverell Trust, together with the size and composition of the estate, provided adequate provision and recognition; therefore no variation of the will was required and the Family Protection claim failed.
22 Jun 2010

MCKNIGHT AND ORS V CRAIG AND ORS HC DUN CIV-2009-412-000919

Citation

openlaw-327012a1_3bfd_47ac_863f_18eeb016a201.pdf
Court

High Court

The Court approved the proposed variation because the applicants amended the draft Craig Family Trust deed to remove the identified potential detriments to minor and unborn beneficiaries, counsel for those beneficiaries confirmed no detriment remained, and approval was granted conditionally on the deed conforming to the amended draft filed 10 June 2010.
15 Jun 2009

BRIAN WILLIAM NICHOLL V LEGAL SERVICES AGENCY HC HAM CIV 2008-404-6896

Citation

openlaw-006186ab_6c74_442b_a134_4e118e2d62e1.pdf
Court

High Court

Regulation 6(2)(b), read with s113(i)(v), permits the Agency and LARP to take an applicant's interest in a trust (including discretionary benefits in the lay sense of 'contingent') into account as disposable capital; the Agency was entitled to assess the appellant's substantial interest, but must compute that interest on a fair and reasonable basis rather than simply treating the full property value as the applicant's interest; applying a modest discount would not alter the contribution outcome; appeal dismissed.
7 Aug 2008

KAIN AND ORS V HUTTON AND ORS SC 40/2007

Citation

KAIN AND ORS V HUTTON AND ORS SC 40/2007
Court

Supreme Court

Ponui appointment was valid: evidence established that Mrs Annette Couper genuinely benefited and retained effective control under the Ponui Trust so the trustees' appointment was not a fraud on the power. Mangaheia resettlement was invalid: trustees purported to exercise s 41 advancement in favour of someone who lacked a contingent or vested capital interest and no required consent or court approval was obtained; the Court will not recharacterise an attempted advancement as an appointment under cl 4 when trustees deliberately proceeded under the advancement route. Accordingly Ponui appeal di…
17 Dec 2003

DOREEN MARY FITZGERALD AND RODNEY ARTHUR MILLS V ARNOLD GERARD FITZGERALD, MARIE ROSE MILLS, DANIEL ANTHONY FITZGERALD, THERESE MARY MUGGERIDGE, ANGELA MARY KISER, PATRICIA MARY MUGGERIDGE AND LOUISE MARY BUGLER CA CA86/03

Citation

openlaw-66f7c613_dae5_4b42_85e0_8a2a3c8fec4f.pdf
Court

Court of Appeal

The Court held clause 1(c)(4) vests net annual income arising after each beneficiary attains 21 equally as tenants in common; however trustees' annual determinations under clauses 3 and 4 can and did operate to retain part of income as a reserve so that retained accumulated income did not vest in the beneficiaries; therefore Salmon J's orders were set aside and the appeal allowed.