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Settlors, trust, Trustees

Resettlement pursuant to section 124 of the Trusts Act

The trustees of The Elizabeth Ann Bensaude Family Trust (NO. 2) Trust (the Bensaude Trust) wish to resettle the assets of that trust onto a new trust, the JJ Family Trust. The settlor of the Bensaude Trust was Elizabeth Bensaude’s mother. Elizabeth Bensaude was the settlor of the JJ Family Trust.

The Bensaude Trust is not drafted on entirely convenient terms. Capital cannot be distributed when most desirable to do so, the final vesting day cannot be brought forward and there is a risk of an inequality between different branches of the family.

Counsel for the unborn, minor and future beneficiaries of the Bensaude Trust approved a proposed resettlement from the Bensaude Trust to the JJ Family Trust provided that Elizabeth Bensaude’s great grandchildren are added as discretionary beneficiaries of the JJ Family Trust.

Section 124 of the Trusts Act 2019 empowers the Court to consent to variation or resettlement on behalf of minor, unborn and unascertained beneficiaries. In deciding whether to do so the Court must take into account:

The guiding principles in terms of any application under section 124 of the Trusts Act were summarised as follows in Gavin v Gavin at [15]:
Gendall J was satisfied that the orders sought regarding the resettlement of the Bensaude Trust could be made.

The regular flow of decisions under the Trusts Act 2019 is providing useful guidance regarding the approach the Court will take moving forward, which to date appears principled and directed towards practical outcomes for the families who benefit in differing ways from discretionary trusts.

References:

  • The Elizabeth Ann Bensaude Family Trust (NO. 2) [2022] NZHC 1214
  • Gavin v Gavin [2021] NZHC 550

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