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Beneficiaries, Indmenity, Trustee liability, Trustees, Trusts

Trustees “fortunate” to be liable for only 50%

The Rex White Family Trust (RWFT) was found to have failed by reason of uncertainty. While the Court accepted it was appropriate for the trustees to have sought directions from the Court, it was found that they had acted unreasonably by pursuing an argument as to the existence of the RWFT, which was lacking in merit.  There was no trust deed and the trustees’ relied on a draft deed that contained several defects as evidence of the RWFT.  after making distributions to Mr White’s widow the trustees later took the position the whole of the trust fund should be paid to Freemasons New Zealand.  The High Court found this to be an entirely untenable proposition.

The trustees were found personally liable for half of their costs. The trustee Mr McNiece’s appeal as to his personal liability as to costs was dismissed.  Venning J delivered the reasons of the Court and the conclusion pretty well sums up matters at [35]:

[34] We are satisfied the Judge was right to find that this was a proper case to deny the trustees indemnity for costs from the trust funds. The award of costs in favour of Mrs White (uplifted to reflect the unreasonable approach of the trustees) would be of no practical value to Mrs White if the trustees were able to resort to the trust funds to pay it. Mrs White would effectively be paying the costs award herself. That would defeat the purpose of the award and the reasons which led to it in the first place.

[35] For the same reason the Judge was correct to consider that it was not appropriate for the trustees to recover all their own legal costs from the estate. Despite the unreasonable approach taken by the trustees the Judge noted that they had taken advice before issuing the proceedings. He reduced the amount that they were to pay personally to 50 per cent of their legal fees (including counsels’ fees) incurred in connection with commencing and conducting the proceeding. The trustees were entitled to take the remaining 50 per cent of their legal fees from the trust fund. The trustees may perhaps consider themselves fortunate the Judge did not direct that they pay the whole of the costs themselves.

See You aren’t my beneficiary are you? and Ouch.




  • Davis and McNiece v White [2017] NZCA 585


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