In the Matter of the Tom Smither Family Trust the Court the trustees agreed to terminate the Tom Smither Family Trust (the Trust), which was settled to benefit the settlor (now deceased) and his grandchildren, on the basis set out in a deed of family arrangement the background of which is set out at [3] and [4] in the following terms:
Tom’s updated memorandum of wishes provided:
The final distribution of the Trust was agreed by the grandchildren in circumstances where an immediate wind up would mean that the settlor’s wishes regarding equality would be compromised. As noted at [22]:
The crux of the matter is ventilated at [24] to [26] in the following terms:
In accepting that it was appropriate for the Court to consent on behalf of future beneficiaries the Court observed that the grandchildren were the “takers in default” and that future generations only had an interest as remainders, that is their interests were contingent in circumstances where benefit was unlikley.
References:
- O’Regan & Ors v Linday & Ors [2026] NZHC 2531
- Trusts Act 2019, ss 121, 124, 133
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