Wilson

[2025] NZHC 2442

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-000259

[2025] NZHC 2442

UNDER

the Trusts Act 2019

IN THE MATTER OF

an application to rectify trust deed

BY

JENNIFER KATHLEEN WILSON AND JAYNE KATHLEEN HINETOA

FRANKLIN as trustees of the BOOTSKOOTIN TRUST

Applicants

Hearing:	26 August 2025
Counsel:	D D Vincent and J M Chagger for Applicants
Judgment:	26 August 2025

JUDGMENT OF LA HOOD J

(Application to rectify trust deed)

Does a trust exist despite the absence of a trust deed?

[1]    The applicants (as trustees) apply for a declaration that a family trust was validly created and exists, as they cannot locate an executed copy of the trust deed. The applicants submit there is clear evidence that the trust was validly created, that assets have been transferred into it over time, and that its terms are contained in a template deed. They note that all parties with a direct interest in the trust agree it is valid and subsists, and agree on what should happen to the trust property.

RE WILSON [2025] NZHC 2442 [26 August 2025]

Background

[2]    The applicant, Jennifer Wilson, along with her late husband Colin Wilson, instructed their solicitor, John Gray, to form the trust around November 1997. The purpose of the trust was to protect their assets. One of their daughters was setting up a family trust in the mid-1990s and she had a conversation with her parents about doing the same to protect their family home should either of them be required to live in an aged-care facility.

[3]    The trust was named the Bootskootin Trust (the Trust). The trust deed was signed by Mrs Wilson’s father as settlor, Mr and Mrs Wilson as appointers and trustees, and a late close friend of Mrs Wilson, Jocelyn Black, as independent trustee. The signed trust deed was sent to Mr Gray, but he returned it to the Wilsons to complete the initialling and dating of each page.

[4]    A blank template copy of a trust deed has been provided by Mr Gray. His evidence is that this was the template he used at the time for creating trust deeds and that there were no alterations made for the Trust. Mr Gray had continued to act for the Trust, believing that the trust deed had been signed and retained by the Wilsons.

[5]    There is no record as to what happened to the trust deed after these events and the document appears to have been lost. All attempts to locate the original or a copy of the trust deed have been unsuccessful.

[6]Despite the lack of a trust deed, work was completed for the Trust including:

(a)Purchasing a property in Kahukura Avenue, Waitarere Beach from the Wilsons in 1998, which was gifted off over time.

(b)Purchasing a property in Argyle Avenue, Levin in 1999.

(c)Selling the Argyle Avenue property in 2015, and purchasing another property in Duke Street, Levin.

(d)A Deed of Retirement and Appointment of New Trustee for the Trust, to retire Ms Black and to appoint Jayne Franklin (the Wilsons’ daughter) in 2005.

[7]    Mr Gray acted as solicitor for all of these matters and has produced (as exhibits to his affidavit) documents from his file confirming them.

[8]    Mrs Wilson resides in the family home in Duke Street, Levin. The property is owned by the Trust and is its sole asset. Mrs Wilson is 83 years old and her health is starting to deteriorate. The trustees want to have the option to sell the property so these funds can be used to purchase suitable, safe accommodation for Mrs Wilson in light of her health. The trustees cannot take any steps without confirmation of how to proceed with the Trust property and certainty around the Trust’s terms.

Beneficiary consent

[9]    In accordance with the trust deed template, if there is no appointment of discretionary beneficiaries to receive the Trust fund at the date of distribution, it goes to the appointers’ (the Wilsons’) living children in equal shares. The Wilsons’ children are also discretionary beneficiaries of the Trust.

[10]   Their children are Peter Wilson, Jayne Franklin, and Shelley Leason. In addition to affidavits from Mrs Wilson and Mr Gray, I have been provided with affidavits from all of the children in support of this application. In the absence of any appointment of discretionary beneficiaries to receive the Trust fund, the children are the individuals with an interest in the Trust on distribution (alongside Mrs Wilson). They are also the people most expected to benefit from the Trust during the life of the Trust. They are all in support of recognising the trust deed to allow Mrs Wilson to take the immediate benefit of the Trust’s assets.

Relevant legal principles

[11]   That declaration is sought pursuant to the Court’s inherent jurisdiction, which is saved by s 8 of the Trust Act 2019.

[12]I gratefully adopt the following summary of the applicable principles from

Davis v White:1

[70]      In order for a valid trust to be created and exist, three certainties must be present and satisfied. They are:

(a)Certainty of intention: a court cannot hold that a trust exists unless it is satisfied that there was an intention to create the trust.

(b)Certainty of subject matter: the property of a trust must be clearly ascertainable. The subject matter of a trust must be in existence when the trust is declared.

(c)Certainty of objects: the identity of beneficiaries of the trust must be certain. At the least, there must be specified criteria that enable the trustees to say whether a particular person is or is not a beneficiary (category certainty). In the case of a discretionary trust what is required is conceptual certainty, that is a sufficient degree of precision to enable the limits of the class to be ascertained. Evidential uncertainty does not mean that the necessary subject matter certainly does not exist.

Decision

[13]   I accept the applicants’ submission that the two Australian decisions discussed in Davis v White are analogous to this case.2

[14]   In Porlock Pty Ltd a trust deed could not be located.3 The Court held that convincing secondary evidence from a retired accountant with direct involvement with the trust, who had written a letter outlining operative provisions of the trust and sworn an affidavit confirming his belief that his letter accurately outlined the trust’s terms, was sufficient to recognise the trust. If the trust deed was later found and its terms were inconsistent, the trustees would still have the protection that the management and disposition of the trust fund was in accordance with the Court’s advice.4

[15]   In D R McKendry Nominees Pty Ltd the Court granted a declaration where the trust deed could not be found.5 The trust deed was a pro forma set of trust deed

1      Davis v White [2016] NZHC 1626 (footnotes omitted).

2      Davis v White, above n 1.

3      Re Porlock Pty Ltd [2015] NSWSC 1243.

4 At [9].

5      D R McKendry Nominees Pty Ltd [2015] VSC 560.

documents customarily used by the solicitor who had drafted the trust deed and who had deposed to using that documentation. The Court referred to this as “cogent evidence” of the creation of the trust and its terms, and concluded that the trust deed, when executed, was in the form of the draft deed.6

[16]   Digby J noted that where an original document is lost or destroyed, clear and convincing proof of the trust’s existence and of its contents may be given by secondary evidence.7 As there was significant supporting and persuasive evidence for the existence and due execution of the trust deed, the declaration was made.

[17]   In this case, Mr Gray has provided clear evidence of the form and content of the trust deed, as well as documentary evidence of the Trust’s assets and the contributions of the Wilsons to the Trust over time. Mr Gray’s evidence is confirmed by Mrs Wilson and her children’s evidence about the setting up of the Trust, the transfer of assets to it, and the family’s belief that it was validly created and has existed since 1997. All parties with a direct interest in the Trust agree it is valid and subsists, and agree on what should happen to the Trust’s property.

[18]   I consider there is persuasive evidence that the Trust was validly created and that the template deed reflects its terms. I am satisfied that there is certainty of intention, certainty of subject matter, and sufficient certainty of object. It follows that the three certainties of trust are present.

[19]   I therefore declare that the Bootskootin Trust was validly created and exists. The Wilsons are the appointers, the applicants are the current trustees, and the terms of the Trust are set out in the template trust deed (exhibit A to Mrs Wilson’s affidavit).

La Hood J

Solicitors:
CS Law, Wellington for Applicants

6      At [23]–[26].

7 At [7].