Middlemiss v Fidelis Trust Limited relates to an application for variation of a trust with a very limited class of beneficiaries including potential charities pursuant to a clause that what was described by Venning J as “speculative and ill-defined” with respect to the nature of any charitable beneficiaries.
The relevant background is set out at [4] to [6] as follows:
In Middlemiss v Fidelis Trust Limited the court was satisfied that there were no contested questions of fact such that it was appropriate for the proceedings to proceed by way of originating application.
The Court’s approval was required pursuant to section 124 of the Trusts Act 2019 due to the inclusion of the non-specific charitable beneficiaries.
The Court was satisfied the Sam and his family needed to access the Trust funds without waiting for the death of the incapacitated settlor who is currently aged 94. Although not a specific requirement under part 6 the Court took into account the fact that the trustee and the settlor’s attorney had consented to the application. Accordingly, orders were made permitting the beneficiary’s application to vary the terms of to the trust to transfer the power of appointment to the sole named beneficiary and to add his children as beneficiaries.
For a comprehensive assessment of beneficiary rights see Trust Series 2024 – Beneficiary Rights, which is presented by Vicki Ammundsen.
Also see Waiver and variation under the Trusts Act,
References
- Middlemiss v Fidelis Trust Limited [2024] NZHC
- Trusts Act 2019, s 124
- Talyjancich v Talyjancich [2021] NZHC 753
- Re Borthwick [2023] NZHC 3685
Matters of Trust 
Discussion
No comments yet.