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General

Supervision does indeed mean supervision

The inherent jurisdiction of the High Court includes the supervision of trusts. However, the temporal aspect of the jurisdiction and the ability for this to provide a longer-term administrative solution is a useful aspect of the jurisdiction.

Such a case is Matheson v Clare Matheson Trust Limited, which concerned an application by a settlor and beneficiary for a declaration that the plaintiff had the power to remove the defendant as trustee, replacing it with her two brothers (aged in their 70s and 80s). The background to the trust was that it was established in 1999 for the primary benefit of the settlor’s daughter, Clare, who is now 48 years old and requires ongoing care and medication owing to her disabilities. Clare lives with her mother, although future residential care appears to have been an issue within the family. The corporate trustee initially opposed removal on the grounds of concerns over future trust management and the use of trust funds, but no longer opposed removal by the time the case came to Court. There was also evidence that the proposed trustees would be the third set of trustees in 7 years, with a history of disputes over the use of trust funds.

In the High Court Nicholas Davidson J found that, notwithstanding that the trustee had demonstrated a “high level of competence and knowledge” and had “undertaken its stewardship with skill and prudence”, the plaintiff was nevertheless entitled to the declaration sought that she had the power to remove the trustee and to replace it with her brothers. There was discussion of the principle stated in Hunter v Hunter and confirmed in Clifton v Clifton that the primary consideration when removing trustees is the welfare of the beneficiaries.

However, the Court went further. Showing clear discomfort with risks faced by the Trust, the judge went on to make further orders requiring information from the new trustees concerning the Trust’s finances and future investment strategy. In his words the “intent of the orders is to achieve an efficient, cost effective and litigation free administration for the sake of Clare and the beneficiaries as a whole”.

 

References

Matheson v Clare Matheson Trust Limited [2018] NZHC 1941

Hunter v Hunter [1938] NZLR 520

Clifton v Clifton (2004) 1 NZTR 14-018

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