Decidedly not missing

As noted in Re Estate of Glue section 136 of the Trusts Act 2019 provides a “broader, more flexible” determination of ‘reasonable measures’, compared to what has been described as the repealed Trustee Act’s “long and impenetrable provision.” This has been achieved by codifying a common law jurisdiction that gives the Court broad powers to approve distributions by trustees where beneficiaries cannot be traced.

In Re Estate of Glue as noted at [8]:

However, as David was not missing, rather David simply would not respond to any communications from the Trustee, the question for the Court set out at [9] was whether the “… transfer of David’s interest to the Crown under s 149 may better accord with the terms of the Glues’ wills, leaving David opportunity to claim his entitlement if ever he cared to do so.

The Court’s reasons for not doing so are set out at [10] and [11] as follows:

The standard of enquiry required to satisfy the Court for the purposes of s 136 of the Trusts Act is traversed in Hodgson v Hodgson. By way of background as noted at [1] to [3] of the 2023 judgment:

The 2023 judgment sets out the efforts taken to find Mr Hodgson in some detail at [10] to [12]:

Interestingly, as noted at [13] and [14]:

As noted at [17] and [18]:

Also see In the Matter of the Estate of Pita Pani Cooper where as noted at [6] to [9]:

[6] Dr Francine Tyler of Genealogy Investigations Limited was retained to undertake searches to locate a missing potential residuary beneficiary, a daughter. She undertook extensive searches pursuing a number of leads which did not obtain results. She also made social media searches. In her report, Dr Tyler concludes that the unnamed fifth daughter on Pita Cooper’s death certificate may never have existed. Dr Tyler has completed family trees and has contacted family members for the other children of the deceased. None of those family members were able to provide the fifth child’s name or the name of its mother. It appears there may be a mistake on the death certificate.

[7] In addition, Public Trust made enquires to all locatable family members as to the location or existence of the missing daughter and no additional information was provided. Halie Li for Public Trust indicates that any advertising calling for the missing daughter or her issue or successors to lodge claims would seem unlikely to achieve any applicable results given the already extensive inquires and searches.

[8] The last Public Trust step taken to locate the missing daughter was contacting a family member on 17 December 2024. At least 60 days have passed since then.

[9] I am satisfied that reasonable measures have been taken to bring the notice to a potential beneficiary of her potential beneficial interest, and 60 days have elapsed. No potential beneficiary (i.e. the apparently missing daughter or her issue or her successor) has come to the attention of the Public Trust as a result of measures taken. It is appropriate that the Public Trust distribute the trust property as if the fifth child
did not exist.

References

• Hodgson v Hodgson [2021] NZHC 906 at [14]–[15], citing Te Ako Mature o Te Ture | New Zealand Law Commission Law of Trusts: Preferred Approach (NZLC IP31, 2012) at [11.58]
• Hodgson v Hodgson [2023] NZHC
• FFP Trustee (NZ) Limited v Peng [2021] NZHC 3507 at [65], citing Re Benjamin [1902] 1 Ch 723, [1900-1903] All ER Ext 1300
• Trusts Act 2019, ss 136, 149
• Re Estate of Glue [2023] NZHC 464
• In the Matter of the Estate of Pita Pani Cooper [2025] NZHC 1309