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…
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- AGLC
- Biss [2025] NZHC 1096
- Case
- [2025] NZHC 1096
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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