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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wilson

Details

AGLC: Wilson [2025] NZHC 2442
Case: [2025] NZHC 2442
Decision Date: 26 August 2025

CaseChat Overview and Summary

Jennifer Kathleen Wilson and Jayne Kathleen Hinetoa Franklin, as trustees of the Bootskootin Trust, sought a declaration from the High Court that the family trust was validly created and exists, despite the absence of an executed copy of the trust deed. The applicants argue that 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. 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. The applicants seek to have the option to sell the trust property to purchase suitable, safe accommodation for Mrs Wilson in light of her health.

The court had to decide whether a trust exists despite the absence of a trust deed, and if so, what the terms of the trust are. The court noted that for a valid trust to exist, three certainties must be present: certainty of intention, certainty of subject matter, and certainty of objects. The court also noted that secondary evidence may be sufficient to recognise a trust and its terms if the original trust deed is lost. The court considered the evidence provided by the applicants and their children, as well as the evidence of the solicitor who acted for the trust. The court concluded that there was persuasive evidence that the trust was validly created and that the template deed reflects its terms.

The court held that the three certainties of trust were present and declared 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. The court’s declaration provides the trustees with the certainty they need to proceed with the Trust property and to purchase suitable, safe accommodation for Mrs Wilson.

Orders