Biss
[2025] NZHC 1096
•8 May 2025
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 the Variation of the Trust Deed.
1.2.An Order pursuant to section 124 of the Trusts Act 2019 approving the addition of a definition of Discretionary and Final Beneficiaries in the Trust Deed as follows:
(a)An amendment to paragraph 9(c) to read "wife" means Maureen Joan McLeod including the present wife for the time being Rosemary Anne McLeod.
(b)A definition of Discretionary and Final Beneficiaries reading
- "Discretionary and Final Beneficiaries both as to Capital and Income, both before and after the Distribution date, including for but not limited to the purposes of clauses 12, 16, 17 and 18, shall include the Blackbridge Trust where Rosemary Anne McLeod is the Principal Beneficiary, the Kirsty Trust where Kirsty Anne McLeod is the Principal Beneficiary, the Stu & Maud Trust where Catriona Ruth Williams is the Principal Beneficiary and Kate O'Hara McLeod-Ferguson".
Proceeding by way of originating application and related orders
[10] In view of the nature of the application and the agreement of all the adult beneficiaries, I am satisfied that the proceeding should proceed by way of an originating application.1 The application is unopposed and straight forward. Therefore, it is in the interests of justice to secure a just, speedy and inexpensive determination without unnecessary cost and complexity.2 For the same reasons, service is dispensed with.
[11] I turn to the substantive applications. Simon Charles Biss, one of the trustee’s gave evidence confirming that the trustees agree to the variation proposal. Mr Biss notes that para 9(c) of the Trust Deed dated 1 July 1995 defines wife as “Maureen Joan McLeod or other the wife or any former wife for the time being of Gordon Stuart McLeod”. Mr Biss says that while the drafting of the paragraph is reflective of trust deed drafting back in the mid-1990s, he has been advised that the wording could possibly give rise to doubt nowadays. He submits it is important clarity is given so makes this originating application for the variation.
Legal position
[12]Section 124 of the Trusts Act 2019 provides [emphasis added]:
1 High Court Rules 2016, r 19.5
2 Macalister (as trustees of the Robert Lachlan Macalister Trust) [2021] NZHC 3572 at [11].
124Power of court to approve termination, variation, or resettlement of trust
(1)The court may, on behalf of any of the beneficiaries described in subsection (2) who has an interest in the property of a trust, approve the termination, variation, or resettlement of the trust.
(2)The beneficiaries are—
(a)a beneficiary who lacks capacity:
(b)a person who may acquire a beneficial interest at a future date or on the happening of a future event or on becoming a member of a certain class of persons:
(c)a future person who may acquire a beneficial interest.
(3)An application for an order of approval may be made by—
(a)the trustees or any one of them:
(b)any person with a beneficial interest in the trust property.
(4)On an application for an order of approval, the court must take into account each of the following factors:
(a)the nature of any person’s interest in the trust property and the effect of the proposed order on that interest:
(b)the benefit or detriment that may result to any person with an interest in the trust property if the court makes or refuses to make the proposed order:
(c)the intentions of the settlor of the trust in settling the trust, if it is practicable to ascertain those intentions.
(5)The court must not make an order of approval if its effect would be to reduce or remove any vested interest in the trust property.
(6)An order of approval binds the person on whose behalf it is made and takes effect without any further step.
[13]Section 125 provides:
125 Power of court to waive requirement of consent to termination, variation, or resettlement of trust
(1)The court may waive the requirement that a beneficiary consent to the termination of a trust under section 121 or the variation or resettlement of a trust under section 122.
(2)An application for an order of waiver of consent may be made by—
(a)the trustees or any one of them:
(b)any person with a beneficial interest in the trust property.
(3)On an application for an order of waiver of consent, the court must take into account each of the following factors:
(a)the nature of any person’s interest in the trust property and the effect of the proposed order on that interest:
(b)the benefit or detriment that may result to any person with an interest in the trust property if the court makes or refuses to make the proposed order:
(c)the intentions of the settlor of the trust in settling the trust, if it is practicable to ascertain those intentions.
(4)The court must not make an order of waiver of consent if its effect would be to reduce or remove any vested interest in the trust property.
(5)An order of waiver of consent binds the person on whose behalf it is made and takes effect without any further step.
[14] Section 124 gives that Court the power on behalf of a beneficiary (including who lacks capacity) to approve the variation of trust. In this case, Kate lacks capacity because she is only 11 years of age.
[15] Kate’s mother has her best interests at heart which as evident from her affidavit. Kate will continue as a final and a discretionary beneficiary of the Dry Lands Trust.
[16] It clear from the affidavit evidence that the Settlor’s intention was to benefit her son Stuart and his then wife together with any children or grandchildren. The substitution of Stuart for his present wife is consistent with that intention. The variation would not reduce or remove any vested interest in the Trust property.
Variation of the Trust Deed
[17] I am of the view that the definition of “wife” in the trust is wide enough to extend to Rosemary. While there may be an argument that the reference to Maureen or “other the wife or any former wife for the time being” of Stuart may refer to earlier wives, the better interpretation is that it also includes any future wives of Stuart should Maureen predecease Stuart and he remarry, as has occurred in the present case. That interpretation is consistent with the intention of the Trust Deed to benefit Stuart and his family.
[18] There is evidence as to how any detriment to Kate will be addressed. In addition, the adult beneficiaries have indicated it is unlikely there will be further grandchildren. But in the event there are further grandchildren, they will be included as beneficiaries in the trusts of each of the adult beneficiaries.
Conclusion
[19]Accordingly, I am satisfied that the orders at [9] should be made as follows:
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 the Variation of the Trust Deed.
1.2.An Order pursuant to section 124 of the Trusts Act 2019 approving the addition of a definition of Discretionary and Final Beneficiaries in the Trust Deed as follows:
(a)An amendment to paragraph 9(c) to read "wife" means Maureen Joan McLeod including the present wife for the time being Rosemary Anne McLeod.
(b)A definition of Discretionary and Final Beneficiaries reading
- "Discretionary and Final Beneficiaries both as to Capital and Income, both before and after the Distribution date, including for but not limited to the purposes of clauses 12, 16, 17 and 18, shall include the Blackbridge Trust where Rosemary Anne McLeod is the Principal Beneficiary, the Kirsty Trust where Kirsty Anne McLeod is the Principal Beneficiary, the Stu & Maud Trust where Catriona Ruth Williams is the Principal Beneficiary and Kate O'Hara McLeod-Ferguson".
[20] The approval on behalf of Kate by the Court allows the amendments sought which I am satisfied as is her mother, are in her best interests.
Grice J
Solicitors:
WCM Legal, Wellington for Applicants
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