W J Francis Family Trust

[2020] NZHC 1759

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-277

[2020] NZHC 1759

IN THE MATTER

of the Trustee Act 1956

AND

IN THE MATTER

of the W J FRANCIS FAMILY TRUST and FRANCIS PROPERTY TRUST

BETWEEN

SIMON GEORGE MORTLOCK AND CRAIG PAUL BURROWES

Applicants

Hearing:

20 July 2020

(Telephone Conference)

Counsel:

V T M Bruton QC for the Applicants

P A Brown for Helena Francis and Jamie Blaxall J P Forsey for Deborah Francis

N L Walker for Wayne Francis Charitable Trust

Judgment:

21 July 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 21 July 2020 at 3.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 21 July 2020

RE W J FRANCIS FAMILY TRUST & FRANCIS PROPERTY TRUST EX PARTE MORTLOCK [2020] NZHC 1759 [21 July 2020]

[1]    This judgment concerns the last of a number of procedural applications in     a proceeding where directions are sought under s 66 of the Trustee Act 1956 by the trustees of the W J Francis Family Trust and the Francis Property Trust (the Trusts).

The remaining procedural issues were dealt with in my judgment of 3 July 2020.1

[2]    I requested further assistance from counsel in relation to an application that there be no orders for representation or service in relation to unborn beneficiaries.

[3]    The applicants are trustees of the Trusts, which were both settled by the late Mr Wayne Francis (the deceased). Under the Trust Deeds (including variations), the deceased’s children, grandchildren, great grandchildren and great-great grandchildren are beneficiaries. The settlor had a daughter and she has two children aged 23 and 16. Representation for the 16 year old was dealt with in my earlier judgment.

[4]    The substantive directions sought concern an issue of interpretation. When the settlor died, he was married. The issue on which directions are sought is whether, when the Trust Deeds of the Trusts refer to the settlor’s wife, does that include the settlor’s widow? The trustees have treated the deceased’s widow as a beneficiary.

[5]    If the applicants’ position is correct, the deceased’s widow will be confirmed as a beneficiary. Ms Bruton QC, counsel for the applicants, acknowledges that (in theory at least), the unborn great grandchildren and great-great grandchildren would be better off if the widow was not a beneficiary. Such must be correct.

[6]    Again, the position is approached at a theoretical level. Confirmation that the settlor’s widow is not a beneficiary would mean one less beneficiary to call upon the assets  in  the Trusts.  Any increase  in  those  who  may call  on  the Trust  assets  is a prejudice to the existing classes of beneficiaries born or unborn.

[7]    As the interests of the unborn beneficiaries can be adversely affected by the orders sought, I do not consider that I can dispense with them being represented.2

1      Re W J Francis Family Trust & Francis Property Trust, ex parte Mortlock [2020] NZHC 1552.

2      Stevens v McLeod [1965] NZLR 364 (SC) at 365.

[8]    At a telephone conference held to discuss this issue, Ms Bruton had anticipated it was likely I may get to that position and she suggested that Mr Stephen Hunter QC be appointed to represent the unborn beneficiaries.

[9]    Accordingly, there is an order appointing Mr Stephen Hunter QC, Barrister of Auckland, to represent the unborn great grandchildren and unborn great-great grandchildren in respect of the W J Francis Family Trust and Francis Property Trust. That order is subject to Mr Hunter confirming he is willing to accept the position.  Ms Bruton confirmed she would liaise with Mr Hunter in that regard and that if he accepted appointment she would provide him with a copy of the pleading.

[10]   In my judgment of 3 July 2020, I adjourned this matter to be called in the Duty Judge List on Monday 3 August 2020. To allow Mr Hunter to get up to speed and prepare a report, and to avoid an unnecessary call, the call on 3 August 2020 is vacated and the matter will now be called in the Duty Judge List on 17 August 2020.

Associate Judge Lester

Solicitors:

Mortlock McCormack Law, Christchurch

Copy to counsel:

V Bruton QC, Barrister, Auckland

P A Brown, Pricilla Brown Barrister & Solicitor, Auckland J P Forsey, Duncan Cotterill, Christchurch

N L Walker, Russell McVeagh, Wellington