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Removal of trustees, Testamentary trusts, Trustees, Trusts, Trusts Bill, Will trusts, Wills

Saunders v Vautier 2019

The rule in Saunders v Vautier is generally well understood.  However, the parameters of the rule are less clear.  As noted in the Law Commission’s Third Issues Paper on the Review of the Law of Trusts “Perpetuities and the Revocation and Variation of Trusts”:

The scope of the rule has become wider than merely allowing a trust to be revoked. The New Zealand High Court has allowed beneficiaries to use the rule to vary trusts by conferring new powers upon trustees or allowing them to deviate from, or vary, the terms of the trust where trustees are in agreement.

In Re Philips New Zealand Ltd, Justice Baragwanath said:

The rule in Saunders v Vautier … points the way: while all beneficiaries sui juris cannot direct trustees who bona fide oppose a particular course of action — Re Brockbank  — their power to put an end to the trust is the ultimate exercise of unanimous consent. Since they can together use their possession of the total bundle of proprietary rights to terminate the trust it is difficult to see why they cannot use the same rights to permit the trustees to modify it.

The Trusts Bill proposes to effectively codify the Rule in Saunders v Vautier.  However, as the Trusts Bill sits (or slides) down the Parliamentary order papers, the common law marches on.

Summerlee v Pool, which is essentially a family squabble regarding the final distribution of a will trust, advances the Rule in Saunders v Vautier to allow the majority of the final beneficiaries (who gave notice as to the termination of the Trust)  to remove the incumbent trustee and appoint Perpetual Guardian as a new trustee.  This step appears to be a practical reflection of the need to have a functioning trustee to facilitate the final distribution of the Trust estate.

It is not clear if the appointment of the new trustee was to reflect the indivisible nature of the Trust’s assets or whether this step is permissible, regardless of the nature of the Trust’s assets.

Editor’s note: a subsequent application for a stay was declined as was an application for an extension of time to appeal.  Subsequently the Court of Appeal granted an application of the extension of time (since declined) that expired without Mr Pool filing the case on on appeal or applying for a hearing date.  A further application for an extension has yet to be determined.  In the meantime, the Court of Appeal has declined an application for the appointment of legal counsel and a litigation guardian.

The claim was subsequently struck out.   See at Summerlee and Perpetual Trustee Limited for the further background, which is set out at [10]:

With the sale of the property subject to this proceeding having taken place, it appeared to me that the proceeding had become redundant and in the minute of 13 November 2019, I directed that if Mr Pool considered there was still life in this proceeding, that is, there were applications still to be dealt with, or there were orders he sought in this proceeding, then he was to specify those by way of memorandum.  Mr Pool did not do so.

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