Irwin v Irwin

[2021] NZHC 926

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-565

[2021] NZHC 926

UNDER

the Trusts Act 2019

IN THE MATTER

of the Motuoapa Trust

BETWEEN

PETER JOHN IRWIN AND DAVID JOHN CHAPMAN AS TRUSTEES OF THE MOTUOAPA TRUST

Applicants

AND

CATHERINE ANNE IRWIN, JOCELYN MARY FOSTER, PETER JOHN IRWIN AND RICHARD PAUL IRWIN AS FINAL BENEFICIARIES OF THE MOTUOAPA TRUST

Respondents

On the papers
Counsel:	C S Chapman for Applicants
Judgment:	28 April 2021

JUDGMENT OF THOMAS J

[1]                 The applicants seek orders under ss 124 and 125 of the Trusts Act 2019 approving a variation to the trust deed of the Motuoapa Trust (the Trust).

[2]                 The Trust was settled in 1989. I am satisfied by the evidence filed in support of the application that the terms of the Trust are no longer consistent with the needs of its beneficiaries. In particular, the Trust deed prevents capital distributions to the surviving settlor, who is aged in his 80s and lives in a retirement home. There are tax

IRWIN v IRWIN [2021] NZHC 926 [28 April 2021]

considerations relevant to the situation of many of the beneficiaries which also need to be taken into account.

[3]                 The Court is requested to approve a variation which provides for an additional clause as follows:

Up to the vesting day, the trustees may from time to time at their absolute discretion pay, apply or appropriate the whole of the capital and income of the Trust fund to or for the benefit of John Cedric Irwin.

The remaining terms of the trust deed are to remain in full force and effect.

[4]There is no opposition to the application from the adult beneficiaries.

[5]                 Under s 124, the Court can, on behalf of any persons who may acquire a beneficial interest at a future date,1 approve the termination, variation, or resettlement of a trust.2

[6]                 I have taken into account the nature of those interested in the Trust property and the effect of the proposed order on that interest, the benefit or detriment that may result to any person with an interest in the Trust property if the order is made or refused, and the intentions of the settlor, supported by his affidavit evidence.3

[7]                 The application is granted. The reasonable solicitor and client costs of the parties and any persons directed to be served are to be reimbursed by the Trust.

Thomas J

Solicitors:
Succeed Legal, Wellington for Applicants

1      Trusts Act 2019, s 124(2).

2      Trusts Act 2019, s 124(1).

3      Trusts Act 2019, s 124(3). See also Gavin v Gavin [2021] NZHC 550 at [13]-[15].