Estate of Tuck - [2024] NZHC 174

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-000772

[2024] NZHC 174

UNDER Part 18 of the High Court Rules 2016

AND UNDER

Sections 124, 125 and 133 of the Trusts Act

2019

IN THE MATTER

of the Estate of Josephine Mary Tuck and the Tuck Family Trust

BETWEEN

PUBLIC TRUST of Auckland as executor of the estate of Josephine Mary Tuck and

trustee of the Tuck Family Trust Plaintiff

Hearing: On the papers

Counsel:

A S Cavanaugh for Plaintiff

Judgment:

14 February 2024

JUDGMENT OF RADICH J

[1] The Public Trust, as executor of the estate of Josephine Mary Tuck, seeks orders that in essence will give effect to a conditional deed of settlement entered into between the Public Trust and the deceased’s three adult children.1 The late Mrs Tuck’s will leaves the residue of her estate to the Tuck Family Trust. The Public Trust is the sole trustee of the Tuck Family Trust.2

1 Probate of Mrs Tuck’s will was granted to her children, Craig Garry Tuck and Carlene Joy Bone. By a Court order dated 7 July 2020, Craig and Carlene were removed as executors of the estate and the Public Trust was appointed as sole administrator.
2 Following a Court order on 12 February 2019 which removed Craig Tuck as a trustee of the trust.

ESTATE OF JOSEPHINE MARY TUCK [2024] NZHC 174 [14 February 2024]

[2] The trust was settled through a deed of 20 September 2001, by the late Mrs Tuck and her late husband, Donald Garry Tuck. Its final beneficiaries are “the children of the marriage between the settlors”.

[3] In a decision of 7 July 2023, Palmer J confirmed that “the children of the settlors” under the trust deed include the settlors’ foster daughter, Michelle Thompson. Accordingly, the final beneficiaries of the trust are Craig Garry Tuck, Carlene Joy Bone and Michelle Thompson.

[4]The “discretionary beneficiaries” in the trust are:

(a)the final beneficiaries;

(b)any parent of the settlors;

(c)any lineal descendants of the parents of the settlors; and

(d)any other person declared to be a discretionary beneficiary by the trustees.

[5] The parents of the late Mr and Mrs Tuck predeceased them and no other person has been declared to be a beneficiary of the trust. The “lineal descendants of the parents of the settlors” would include the aunts, uncles, cousins, children and grandchildren of the final beneficiaries.

[6] In reports prepared by Grant Thornton,3 it was concluded that Craig Tuck owed:

(a)between $380,960 and $841,500 to the estate; and

(b)between $685,811 and $987,453 to the trust.

3 Commissioned by the Public Trust to investigate financial transactions through the late Mrs Tuck’s accounts and through the accounts of the trust to determine sums owing by Craig Tuck to the estate and the trust.

[7] The plaintiff, Craig Tuck, Carlene Bone and Michelle Thompson have entered into a settlement agreement, conditional on the consent of the Court, relating to the repayment of sums…

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: [2024] NZHC 174
Decision Date: 14 February 2024

CaseChat Overview and Summary

The High Court of New Zealand, in the Wellington Registry, was tasked with considering an application by the Public Trust, as the executor of the estate of Josephine Mary Tuck and the trustee of the Tuck Family Trust, to obtain orders that would give effect to a conditional deed of settlement entered into between the Public Trust and the deceased’s three adult children. The dispute centred on the repayment of debts owed by one of the beneficiaries, Craig Tuck, to both the estate and the trust, as well as the final distribution of the trust’s assets. The court was required to determine whether the proposed settlement, which included a repayment by Craig Tuck and the final distribution of trust assets to the other beneficiaries, was a proper exercise of the trustee’s powers under the Trusts Act 2019.

The court concluded that the proposed course of action was a proper exercise of the trustee’s powers and was a reasonable outcome, considering the potential litigation risks and costs associated with formal recovery action against Craig Tuck. The court found that the repayment amount was reasonable and that the differing views of the beneficiaries regarding enforcement steps against Craig Tuck did not necessitate further consideration of the alternative approach suggested by counsel for the Public Trust. The court also determined that it was not necessary to consider the termination of the trust for minor, unborn, or future beneficiaries, as there were no apparent benefits to them from the trust.

In light of the court's reasoning, it made orders that the plaintiff, the Public Trust, would accept the settlement sum of $375,000 from Craig Tuck as full and final settlement of his debts to the estate and trust. The Public Trust was also ordered to transfer the assets of the estate to the Tuck Family Trust in accordance with the terms of Josephine Mary Tuck's will. Furthermore, the Public Trust was directed to make the final distributions to the other beneficiaries as set out in the deed of settlement and to take all other actions necessary to give effect to the terms of the settlement.

Orders