Renfree v Renfree

[2013] NZHC 782

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2009-476-000176 [2013] NZHC 782

UNDER  the Trustee Act 1956

IN THE MATTER OF     an application under s 64A

BETWEEN  DAVID RENFREE AND KATHLEEN BRONWEN RENFREE

Plaintiffs

ANDDAVID RENFREE AND KATHLEEN RENFREE AND MYRNA JANICE CARSON

Defendants

Hearing:         16 April 2013 (On the papers)

Counsel:         G Mirkin for Plaintiffs and Defendants

S Saunderson-Warner for adult discretionary beneficiaries and unborn children

Judgment:      16 April 2013

JUDGMENT OF FOGARTY J

Introduction

[1]      This is an application for rectification of a Deed of Trust, and a concurrent application under s 64A of the Trustee Act 1956, to vary the terms of the Deed.

[2]      The Trust was established in July 2001 for the benefit of the settlors, Mr and

Mrs Renfree, their three children and any unborn grandchildren.  Mr Renfree is 74, and Mrs Renfree is 63.  Their three children are respectively 42, 40 and 35 years.

RENFREE & Anor V RENFREE & Ors HC TIM CIV-2009-476-000176 [16 April 2013]

Two of the children live with their parents.  The main asset of the Trust is the family home.

[3]      The Trust Deed provides that the “trust period” means the period from the date of execution until the Vesting Day.  The Trust Deed goes on to define Vesting Day to mean:

The day of the death of the survivor of the settlors;

... such earlier day as the Trustees may by Deed appoint.

[4]      Therefore, on its present terms, the Trust will only remain in existence for the lifetime of the survivor of Mr and Mrs Renfree.

[5]      On the evidence before this Court, this is plainly not the intention of the settlors.   The Trust’s principal purpose was to be for the benefit of their children, with the prospect of the grandchildren benefitting.

[6]      The application before the Court is to amend the terms of the Trust Deed to extend the vesting period to 80 years.

[7]      Ms S A Saunderson-Warner was appointed to represent the unborn children. As the Court expected, she approves the extension of the vesting day by way of amendment under s 64A, and also supports the argument for rectification.

[8]      It is plain that a mistake was made in defining the Vesting Day.  That was contrary to the intention of the settlors.

[9]      The Court grants the remedy of rectification, and approves variation of the terms of the Trust Deed under s 64A, as sought by the application.

[10]     Accordingly, this Court orders that the definition of Vesting Day in the Trust be amended as follows:

“Vesting Day” means:

(a)       The day before the expiration of the period of eighty (80) years from the date of this Deed, or

(b)      Such earlier date as the Trustees in their absolute discretion can appoint in respect either of the whole or part of the Trust Fund.

[11]     There will be an order for costs in favour of the plaintiffs. [12]          Leave is reserved to apply to settle the amount of costs.

Solicitors:

Wilkinson Adams –  [email protected]

Aspinall Joel –  [email protected]