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Testamentary trusts, Variation, Will trusts

Jurisdiction failure

Estates can take time to administer and distribute.  Beneficiaries can tire of waiting.  Or they might require funds to sue the executors or other stuff.  The remedies available to beneficiaries depend on part as to whether the estate has transitioned from the administration phase.  See transition from executor to trustee.  This was of relevance in the case of Burgess v Monk where a residuary beneficiary made applications pursuant to the Trustee Act 1956 and the inherent jurisdiction of the Court.  While there was no dispute that Mr Burgess was a residuary beneficiary as to a 60 per cent share of the estate in question; the matter for the Court to determine was whether the estate was still in administration.  The executor’s position was that as the estate was subject to proceedings (including proceedings filed by Mr Burgess), the executors could not determine the residue available for distribution.  The Court agreed, Peters J declining to order the trustees to make a distribution on the grounds that the Court did not have the jurisdiction to do so.

A request for “updated account statements” and “all source documents relating to money going in and out of the Estate account from 2 October 1980” was also denied, not on the basis of jurisdiction but because the executors satisfied the Court that all relevant documents had been, and would continue to be, disclosed to Mr Burgess.

Peters J also question whether the matter should have been commenced by way of originating application, but granted leave as there was no objection to her doing so and because the application for a distribution failed for the fundamental reason of there being a lack of jurisdiction.


  • Burgess v Monk [2017] NZHC 612
  • Trustee Act 1956, s 64A, 67, 68
  • Rauch v Maguire [2010] NZHC 1009


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