A J and E K Wallace Family Trust - [2020] NZHC 1522

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-922

[2020] NZHC 1522

UNDER the Trustee Act 1956

IN THE MATTER

AND

of the A J and E K Wallace Family Trust

IN THE MATTER

of an application by Anne Woolerton and Leslie George Miller as trustees of the A J and E K Wallace Family Trust for orders under the Trustee Act 1956

Applicants

Hearing: On the papers

Counsel:

J F Cookson for the Applicants

Judgment:

1 July 2020

JUDGMENT OF GAULT J

This judgment was delivered by me on 1 July 2020 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Ms J A Woolerton and Ms J F Cookson, Webster Malcolm Law, Warkworth

RE A J AND E J WALLACE FAMILY TRUST [2020] NZHC 1522 [1 July 2020]

[1] The applicants are the recently appointed trustees of the AJ and EK Wallace Family Trust (the Trust). They apply without notice for permission to commence their proceeding by way of originating application and for directions as to service. The application is accompanied by affidavits and Ms Cookson’s memorandum of counsel in support. The substantive proceeding seeks an order vesting trust property in the applicants as the new trustees of the Trust.

Background

[2] The Trust was settled by deed on 5 May 1997. The settlors were Allan John Wallace and Ethel Kathleen Wallace. Robert Allan Wallace was the sole original trustee. He died on 9 March 2020. The applicants are the executors named in his last will dated 11 November 2019 of which probate was granted on 20 May 2020. The applicants are both solicitors. By deed dated 12 June 2020 the applicants appointed themselves as trustees of the Trust, pursuant to s 43 of the Trustee Act 1956 which allows personal representatives of the last surviving trustee to appoint a person or persons to be a trustee.

[3]The Trust deed provides as follows:

1.THE trustee shall stand possessed of the trust property to hold the same UPON TRUST in accordance with the provisions of Clause 2 hereof until the death of the survivor ETHEL KATHLEEN WALLACE, JOAN ROSEMARY WALLACE and PATRICIA MARGARET WALLACE and thereafter TO HOLD the trust property UPON TRUST for the said ROBERT ALLAN WALLACE for his own use and benefit absolutely PROVIDED HOWEVER that if the said ROBERT ALLAN WALLACE does not survive both the said ETHEL KATHLEEN WALLACE and PATRICIA MARGARET WALLACE leaving issue who shall survive the said ETHEL KATHLEEN WALLACE and PATRICIA MARGARET WALLACE then such issue shall take and if more than one in equal share the interest which the said ROBERT ALLAN WALLACE would have taken had he survived both the said ETHEL KATHLEEN WALLACE and PATRICIA MARGARET WALLACE and attained a vested interest.

2.THE trustee is hereby directed and empowered to permit ETHEL KATHLEEN WALLACE, JOAN ROSEMARY WALLACE and/or PATRICIA MARGARET WALLACE to have the use occupation and enjoyment of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 1522
Decision Date: 1 July 2020

CaseChat Overview and Summary

In this case, the applicants, Anne Woolerton and Leslie George Miller, are the recently appointed trustees of the A J and E K Wallace Family Trust. They applied for permission to commence their proceeding by way of an originating application and for directions regarding service. The substantive proceeding seeks an order vesting the Trust property in the applicants as the new trustees. The Trust was settled by Allan John Wallace and Ethel Kathleen Wallace on 5 May 1997. Robert Allan Wallace was the sole original trustee and died on 9 March 2020. The applicants are the executors named in his last will dated 11 November 2019. They appointed themselves as trustees of the Trust on 12 June 2020, pursuant to section 43 of the Trustee Act 1956. The Trust deed provides for the trustee to hold the trust property until the death of the survivor of Ethel Kathleen Wallace, Joan Rosemary Wallace, and Patricia Margaret Wallace. Thereafter, the property is to be held for Robert Allan Wallace for his own use and benefit absolutely. If Robert Allan Wallace does not survive both Ethel Kathleen Wallace and Patricia Margaret Wallace, leaving issue who survive them, then such issue shall take the interest Robert Allan Wallace would have taken. The applicants seek an order vesting the Trust's half share in the property at 433 Pah Hill Road in their names as the new trustees. The Court found that the proceeding could be commenced by way of an originating application and that it was appropriate to dispense with service on the beneficiaries. The Court held that it was appropriate to make the vesting order to allow the current trustees to deal with the Trust's half share in the Pah Hill Road property, particularly given the sale of the property needed to be settled. The Court made the following orders: (a) the applicants are granted leave to commence this proceeding by way of an originating application; (b) dispensing with service of the proceedings on the beneficiaries of the Trust; and (c) vesting the half share of the property owned at 433 Pah Hill Road, Wharehine, Auckland (record of title NA33C/1445) registered in the name of Robert Allan Wallace, in Jacqueline Anne Woolerton and Leslie George Miller jointly as the new trustees of the Trust.

Orders