Claydon v Symonds - [2012] NZHC 2501

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-000891 [2012] NZHC 2501

IN THE MATTER OF JOHN FRANCIS ALFRED CLAYDON ESTATE

BETWEEN DARREN JOHN CLAYDON Plaintiff

ANDCAROL LINDA SYMONDS ELIZABETH ROBYN DRABBLE Defendants

Hearing: 20 September 2012

Appearances: A G Whitcombe for Applicant
O T Alpers for Defendants

Judgment: 20 September 2012

ORAL JUDGMENT OF FOGARTY J

[1] This is an application by Darren Claydon for the trustees of the estate of his father to be removed and replaced by the Public Trust. The assets of the trust stand at present at approximately $190,000.

[2] The applicant, Darren Claydon, is the only child of his father, John. His father and mother separated soon after he was born and Darren had little contact with his father until shortly before his father died from cancer. His father’s will appointed two persons as his executors, Carol Symonds and Elizabeth Drabble, who were friends of John but also well qualified to be trustees.

[3] After making provision for the payment of his debts and administration expenses the will provided for the residue of the estate to be divided into seven parts:
three of the shares being one share each to go to a friend, Beverley Lawson, to

CLAYDON V SYMONDS HC CHCH CIV-2012-409-000891 [20 September 2012]

Elizabeth Drabble, one of the trustees, and to her husband Brian Drabble. The will then provided to hold the four shares on the following discretionary trust:

1 To invest the trust fund as if they were beneficially entitled to it;

2To apply the income and capital of the trust fund for the benefit of such of my son, Darren John Claydon and his children (if any) as my trustees think fit;

3 To add any undistributed income to the capital of the trust fund;

4On the death of my son at such earlier time as my trustees in their discretion think fit, to end the trust by distributing the trust fund amongst such of my said son and his children then living as my trustees think fit.

5My trustees may exercise their discretionary powers when and how they think fit and shall not be under any obligation to make payments to or for the benefit of all my said son and his children nor to ensure equality among those who are benefitted.

[4] It then provides a further instruction to the trustees:

(e) If any of the gifts set out above fails, it should be added pro-rata to the gifts which do not.

This last clause is uncertain as to meaning. It would certainly apply if, for example, on the death of the testator, Brian Drabble had died, and it would make provision for the specific shares to then be adjusted pro rata.

[5] It was submitted by Mr Whitcombe for Darren that the consequence of this clause (e) is that there was a possibility that one of the trustees, Elizabeth Drabble, might become a beneficiary. It is not necessary in this judgment to determine whether that…

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 Claydon v Symonds

Details

AGLC: Claydon v Symonds [2012] NZHC 2501
Case: [2012] NZHC 2501
Decision Date: 20 September 2012

CaseChat Overview and Summary

The High Court of New Zealand was presented with an application by Darren John Claydon to remove the trustees of his father's estate, John Francis Alfred Claydon, and replace them with the Public Trust. The trustees, Carol Linda Symonds and Elizabeth Robyn Drabble, had been appointed by the deceased under his will. The estate's assets were valued at approximately $190,000. Darren, the sole child of John, had limited contact with his father until shortly before John's death from cancer. The will provided for the residue of the estate to be divided into seven shares, with three shares going to specific beneficiaries and the remaining four shares held on a discretionary trust for Darren and his potential children.

The legal issues the court was required to decide were whether the trustees should be removed and replaced by the Public Trust, and if so, whether the court could give any directions to the trustees. The court considered the trustees' duty to administer the trust funds in accordance with the will, as well as the inherent jurisdiction of the High Court to protect trusts. The court also examined the relationship between the trustees and Darren, which had deteriorated, and whether this justified the removal of the trustees.

The court found that the trustees were not in breach of trust and that the relationship breakdown was due to a loss of confidence by Darren in the trustees. The court emphasised that the trustees' duties were fiduciary, not based on the moral duty of the father. The court urged Darren to have confidence in the trustees and to communicate directly with them, only involving legal counsel when necessary. The court declined to remove the trustees and ruled that it had the inherent jurisdiction to safeguard trusts, despite a clause in the will that attempted to limit the court's powers.

The court concluded by commending the responsible way in which the trustees and legal counsel had been administering the trust and urged Darren to find a way to renew his confidence in the trustees. The court also thanked the legal representatives for bringing the matter to a head and resolved in this way.

Orders