Biss - [2025] NZHC 1096

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2025-435-001

[2025] NZHC 1096

UNDER the Trusts Act 2019

IN THE MATTER

of Dry Lands Trust

BETWEEN

SIMON CHARLES BISS and SIMEON

VAUGHAN CAMPBELL as trustees and executors of the Dry Lands Trust Applicants

Hearing: On the papers

Appearances:

J R Parker for Applicants

Judgment:

8 May 2025

JUDGMENT OF GRICE J

(Application to vary the Deed of the Trust of the Dry Lands Trust)

Introduction

[1] The applicants are trustees and executors of Dry Lands Trust (the Trust). They seek a variation of the Dry Lands Trust Deed (the Trust Deed) to include the second wife of one of the final beneficiaries. They also seek an order waiving the need for an infant beneficiary to consent to the variation of that Deed.

[2] Dry Lands Limited was set up by the Settlor, Alice Ruth McLeod (Alice). She was the mother of Gordon Stuart McLeod (Stuart). The Trust was set up essentially to look after Stuart, his first wife Maureen Joan McLeod (Maureen) and their children Kirsty Anne McLeod (Kirsty) and Catriona Ruth Williams (Catriona), together with

RE BISS AND CAMPBELL [2025] NZHC 1096 [8 May 2025]

any grandchildren. Stuart has one grandchild Kate O’Hara McLeod-Ferguson, who is presently aged 11 years old. She is the daughter of Kirsty.

[3] Under the original Trust Deed, Stuart, his then wife Maureen, the two daughters and Kate are final and discretionary beneficiaries.

[4] Maureen died on 24 September 2000. Stuart married Rosemary Anne McLeod (Rosemary) in February 2009. Stuart now wishes to include Rosemary as a discretionary and final beneficiary of the Dry Lands Trust. Stuart will drop out as a final beneficiary of the Trust by the time of distribution under the terms of the Deed of Family Arrangement.

[5] Consultation has occurred with trustees of the Trust (Mr Biss and Mr Campbell) who agree to the variation proposal and who make this application.

[6] The adult beneficiaries’ consent to the application. Kirsty, Kate’s mother also indicated that she consents on Kate’s behalf. Kirsty notes that if the Court approves the addition of Rosemary as a final beneficiary, then that will sightly reduce the interests of Kirsty, Catriona and Kate as final beneficiaries. However, Kate will be a beneficiary of both Kirsty’s and Catriona’s trusts.

[7] Following a meeting of the trustees and beneficiaries, there has been an agreement to a distribution which has been recorded in the draft Deed of Family Arrangement. That draft Deed was attached to the memorandum of the applicant dated 10 March 2025. It has not been executed yet as it awaits this decision.

Orders sought

[8] Leave to commence proceedings by originating application is sought. No orders are made as to service nor for appointment of lawyer to assist the Court.

[9]The substantive orders sought are:

1.1An Order under section 125 of the Trusts Act 2019 waiving the need for consent from Kate O'Hara McLeod-Ferguson an infant to…

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.

Continue reading Biss

Details

AGLC: Biss [2025] NZHC 1096
Case: [2025] NZHC 1096
Decision Date: 8 May 2025

CaseChat Overview and Summary

The case of Biss involved trustees and executors of the Dry Lands Trust, who sought a variation of the Trust Deed to include Rosemary, the second wife of Stuart McLeod, as a discretionary and final beneficiary. They also sought an order waiving the need for consent from Kate O'Hara McLeod-Ferguson, an infant beneficiary, to the variation of the Trust Deed. The Trust was originally set up to benefit Stuart McLeod, his first wife Maureen, their children Kirsty and Catriona, and any grandchildren. Following Maureen's death and Stuart's remarriage, the Trustees proposed to include Rosemary as a beneficiary and sought the court's approval to do so. The application was unopposed, and all adult beneficiaries consented to the proposed variation.

The court had to decide whether to approve the variation of the Trust Deed to include Rosemary as a beneficiary and to waive the need for Kate's consent to the variation. The court considered the nature of the application, the agreement of all adult beneficiaries, and the best interests of Kate, who was an infant beneficiary. The court also considered the intentions of the settlor, Alice Ruth McLeod, who intended to benefit Stuart and his family. The court concluded that the variation would not reduce or remove any vested interest in the Trust property and that the amendment was consistent with the settlor's intention.

The court granted the orders sought by the Trustees, including the waiver of Kate's consent and the variation of the Trust Deed to include Rosemary as a discretionary and final beneficiary. The court found that the definition of "wife" in the Trust Deed was wide enough to include Rosemary and that the variation was in Kate's best interests. The court's decision allowed the Trustees to proceed with the proposed variation and to distribute the Trust property according to the new terms of the Trust Deed.

Orders