Claims
by two Freemasons that a deceased friend’s family trust was held for the
benefit of Freemasons New Zealand were dismissed in the High Court. They could not point to any concrete evidence
of the Masonic Society being a beneficiary and were ordered to hand over trust
funds in excess of $200,000 to the widow of their friend Rex White.
Bruce Cyril McNiece and Alexander James
Davis asked the High Court to confirm their claimed right to hold family trust
assets of the late Rex White on behalf of the Freemasons. Justice Davison ruled no such trust existed,
Mr McNiece and Mr Davis had no right to retain control of the assets and the two
had to pay out of their own pocket both their own legal costs and a
contribution towards legal costs of Rex White’s widow.
The court was told Rex White died in
2001. The Whites were then living in
Australia and his widow, now aged 88, continues to live there. At the time of his death, Rex White’s estate
was valued at $71,000 but there were assets then valued at $206,000 held by the
Rex White Family Trust. Mr McNiece and
Mr Davis were trustees. The trust had
been set up in 1992 to hold Mr White’s bequest from his mother’s estate. Mrs White knew nothing of this Trust until
told of existence by Mr McNiece after her husband’s death. Complicating matters was the fact the
original trust deed had been lost. A
copy had been filed with Inland Revenue for tax purposes, but this too was
lost. Initially, the two trustees took
the view that Mrs White was the sole Trust beneficiary. They paid annual Trust income to her and made
a $34,000 contribution towards the cost of a hip replacement. Precise details of the Trust became an issue
in 2014 when Mrs White consulted lawyers in New South Wales about her estate
planning. Learning of the Trust’s
existence, they wrote to Mr McNiece to get details. Mr McNiece admitted the Trust deed had been
lost and prevaricated, replying that Mrs White was entitled to income only
during her life and that the final beneficiaries were “various charities”. Pressed on this, Mr McNiece claimed it was
Rex White’s instructions that the Freemasons were to be the final beneficiary.
When an original trust deed is lost, the
courts can determine its terms from ancillary correspondence and drafts of the
trust deed. Justice Davison said drafts
of the Rex White trust deed were unhelpful in this case. The sole draft available was riddled with
errors, the result of a hasty “cut and paste” by Mr McNiece’s law firm. There was no other documentation evidencing
terms of a trust. While a family trust
was established by Rex White in 1992, it has now failed by reason of
uncertainty as to its terms, Justice Davison said. He ruled the disputed assets be handed over
to Mrs White as the sole beneficiary of her late husband’s estate.
Justice Davison was critical of Mr
McNiece’s attempts to disguise his connection with Freemasons. When giving evidence he denied being a member
of the Freemasons, omitting the fact (later disclosed) that he had previously
been a member between 1988 to 1995.
Davis
v. White – High Court (18.07.16)
16.111