Imms v Gunson

The Supreme Court of New Zealand dismissed an application for leave to appeal a decision of the Court of Appeal in Imms v Gunson. The applicant, Jocelyn Mary Imms, sought a variation of the will trusts of her deceased father, Vjerkoslav Ivan Banicevich, who had farmed land at Clarks Bay, Te Kopuru in Northland. The Court of Appeal had set aside directions made by the High Court under section 64 of the Trustee Act 1956. The Court of Appeal had held that the significant change to the will was more than mere management or administration and that it may not be in the best interests of the grandson beneficiaries. The Court of Appeal dismissed the applicant's Family Protection Act claim.

The Court considered the written submissions and the submissions on behalf of the third respondents who indicated that they abide by the Court's decision. The Court concluded that the applicant would face insurmountable jurisdictional hurdles as section 64(1) of the Trustee Act 1956 allows the Court to make orders of the type mentioned only where such transaction is expedient in the management or administration of trust property or would be in the best interests of the persons beneficially interested under the trust. The Court held that the trustees' obligations under the will are to sell the shares in the family company which holds title to the property, either to the second respondents in terms of the option, or to other purchasers if the option is not taken up. There is ample power for the trustees to discharge that obligation without intervention by the Court.

The Court held that it would be difficult indeed for the applicant to show relevant necessity or expediency to rewrite the will in the way suggested by the applicant. The Court dismissed the application for leave to appeal and ordered that costs of $2,500 be payable by the applicant to the second respondents.