//
Principles relating to variation of trusts

No power of variation in the trust deed

It is perhaps surprisingly uncommon for trust deeds to have no power of variation.  This was the case in Sadlier & Ors as trustees of the Cornerstone Prepaid Funeral Trust.  

In that case the starting consideration was whether there was a valid trust.  As noted in the judgment:

[10] Despite the name of the Trust Deed name – The Cornerstone Prepaid Funeral Trust Deed – it is not entirely clear that the Trust Deed establishes a trust, at least in the period prior to the date of distribution when any residual income held by the Trustees is to be distributed. No settlor is identified. No beneficiaries are identified as such in the Trust Deed. In the affidavit accompanying the application it is stated that the beneficiaries are the charitable trusts and other charitable organisations to which any balance of income held by the Trustees is to be paid following the settlement of accounts with customers of the Companies. But because they are not identified as beneficiaries until the date of distribution, at present, such funds as the Trust holds are not held on behalf of any identifiable beneficiaries.

[11] Neither the Companies nor the customers are named as beneficiaries. Yet, during the lifetime of the Trust, both the Companies and the Customers appear to hold a beneficial interest in the funds that are held by the Trust. Both receive money from the trustees, the Companies as payment for the funeral service, and the Customers as return payments where the cost of the funeral service is less than the prepaid amount. However, key aspects of the arrangements to which the Trust relates – notably the payment of funeral expenses at prices set outside the Trust – are governed by separate contracts between the Companies and the Customers.

[12] The question that arises, therefore is whether the Trust Deed does in fact establish a trust or whether it really sets out a series of contractual arrangements between the Trustees and the Companies and between the Trustees and the Customers and, if the latter, whether a genuine trust only arises at the date of distribution.

The court was satisfied that there was a valid trust on the basis that there was certainty of intention, subject matter and objects.  See [34] to [36] where it was said that:

[34] It is clear from the terms and provisions of the Deed that from the outset it was intended to create and establish a trust. The Deed stipulates that the prepayment money received from customers as advance payment for funeral services is to be held by the Trustees on trust for the purpose of meeting the cost of funeral services to be provided by the Funeral Companies at a future date. The Trustees’ obligations relate to both the prepayment monies received, and to the income derived from the investment of the prepayment monies in accordance with the provisions of the Deed.

[35] The subject matter of the Trust is clearly identifiable as being the prepayment monies received and to the income derived from the Trustees’ investment of the prepayment monies in accordance with the provisions of the Deed.

[36] The objects of the trust are clearly expressed in the Deed as requiring the Trustees to hold the prepayment money received and to apply it to meeting the invoiced funeral costs of the customer following the provision of funeral services for that customer, as invoiced by the company with which the customer had an agreement for the provision of future funeral services. In the event that prepaid funerals have not been required to be paid for as at the termination date of the Trust, the Deed provides that the Trustees are to return the prepayment to the customer, together with an allocation of the accumulated interest held by the Trustees.

With respect to the proposed variations,

[54] All of the proposed variations are in my view consistent with the purpose and objective of the Trust and they will enable the Trustees to deal with the present situation whereby one of the original Funeral Companies has been sold and the purchaser company has taken an assignment and become responsible for discharging the contractual responsibilities of the original company to provide funeral services to pre-paying customers. Should that situation arise in the future, those variations to the Trust Deed will enable the Trustees to deal with such a matter by removing a funeral company and substituting it with a new funeral company to otherwise continue to discharge the contractual obligations to pre-paying funeral customers.

[55] The other proposed variations are in each case reasonable and explicable as being an appropriate means of conferring power upon the Trustees to resettle the existing Trust on to a new substitute trust or trusts, provided that the purposes and objectives of any new trust or trusts are consistent with those of the existing trust.

[56] The proposed variation of the number of trustees and the power to appoint or remove trustees is an appropriate means by which the ongoing administration of the Trust by means of an independent trustee and trustees appointed by the participating company will ensure orderly and appropriate ongoing administration.

[57] Section 64A(1) of the Trustee Act 1956 confers a power on the court to approve any arrangement, by whomsoever proposed, varying a trust, or enlarging the powers of the trustees to manage or administer any property subject to the trust.

[58] I am satisfied that the proposed variations to the Trust Deed are a proper and appropriate means of enlarging the powers of the trustees of the Trust so as to enable them to conduct the management and administration of the Trust consistently with its
purpose and objects, and with increased flexibility, enabling them to deal with present and possible future changes to the funeral companies involved in the provision of prepaid funeral services in accordance with the terms of the Trust and Deed.

The variations were approved.

Mirror trusts

Mirror trusts are in large part an historic anomaly relating to attempts to avoid estate duty.  However, on application under s 64A of the Trustee Act 1956 the court is open to a pragmatic outcome to allow all intended beneficiaries of each trust to benefit from each trust where all adult beneficiaries consent.  See Hope Gower Family Trust & Gordon Gower Family Trust.  While the consent of adult beneficiaries does not necessarily determine the matter, if each potential beneficiary’s parent has given consent, the path for a contrary view is difficult to discern.

Interpretation of power of variation 

Most modern trust deeds contain an express power that enables the
trusts and the provisions of the trust deed to be varied.  However, the nature, form and extent of the permitted variations depend, in general, upon the language and apparent purpose of the variation clause in the context of the trust deed as a whole.   See Mercanti v Mercanti

Charitable Trusts

As a general proposition charitable trusts are most commonly varied pursuant to part 3 of the Charitable Trusts Act 1957 (Schemes in respect of certain charitable trusts).  However, the Charitable Trusts Act does not have exclusive dominion regarding the variation of charitable trusts, which can also be varied pursuant to s 64A of the Trustee Act 1956.  See for example Cooney v St Columbans Mission Society of Lower Hutt  where Palmer J made  order under s 64A of the Trustee Act 1956 varying the terms of the B R Berry Charitable Trust (the Trust) so as to authorise the trustees to wind up the Trust and to distribute the net proceeds to it two beneficiaries: St Columbans Mission Society of Lower Hutt and the Pacific Leprosy Foundation in equal shares as a capital distribution.  The application proceeded [4] The plaintiffs seek by way of originating application  seeking an under s 64A of the Trustee Act 1956, varying the terms of the Trust to authorise them to wind up the Trust and distribute the net proceeds to the Trust’s beneficiaries.

References:

  • Sadlier & Ors as trustees of the Cornerstone Prepaid Funeral Trust [2019] NZHC 1140
  • Hope Gower Family Trust & Gordon Gower Family Trust [2020] NZHC 890
  • Mercanti v Mercanti 2016 WASCA 206
  • Cooney v St Columbans Mission Society of Lower Hutt [2020] NZHC 1958

Comments are closed.

Categories

%d bloggers like this: