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Memoranda of Wishes, Trustees, Trusts, Trusts Act 2019

Don’t close the door

The Supreme Court has declined leave to appeal the Court of Appeal decision in Kain v Public Trust. The proposed grounds of appeal were that the Court of Appeal erred in:

With respect to whether a trustee is required to take into account what beneficiaries receive from other trusts of which they are beneficiaries the Supreme Court considered that the High Court was not wrong to find that the Trusts were “to be treated as separate trusts rather than as inextricably linked”.

Separately the Supreme Court noted that the scope and meaning of s 21 of the Trusts Act 2019 (in performing mandatory and default duties a trustee must have regard to the context and objectives of the Trust) may be a question of general and public importance. However, it did no see Kain v Public Trust as an appropriate vehicle to consider that section.

The Court of Appeal’s views regarding trustees being able to take subsequent memoranda of wishes into account was upheld by the Supreme Court, although the door has been left,if not wide open, ajar. As stated at [17]:

References:

  • Kain v Public Trust [2022] NZSC 65
  • Public Trust v Kain [2021] NZHC 1000
  • Kain v Public Trust [2021] NZCA 685
  • Chambers v S R Hamilton Corporate Trustee Limited [2017] NZCA 131

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