Distribution of Waikato farm assets valued at some $4.45 million held by the HJ Bourke Family Trust was delayed for over a year with legal argument over who was entitled to benefit.
The Trust was set up in 1979 by farmer Henry Bourke at a time when estate duties weighed heavy on the estates of deceased farmers. Unusually, the Trust had a fixed forty year time limit with an expectation the Trust would come to an end and the assets returned to his legal ownership when he was ready to retire from farming. He did not survive the Trust. When the Trust expired in May 2019 subsequent to his death, lawyers teased apart wording in the Trust deed, bickering over who were now the beneficiaries.
Named in the Trust deed were Henry’s children and grandchildren. Legal argument was whether all ten children and grandchildren should share (per capita) or just his three children take in equal shares (per stirpes). Per stirpes is legal shorthand for the concept that assets should be divided by lineage: the next generation inherit sharing as ‘first takers;’ their children do not compete by taking concurrently.
Justice Duffy ruled Trust deed division of assets ‘by stocks’ amounted to a per stirpes distribution and created a presumption that Henry’s three children alone were to share equally in distribution of Trust assets. While there was mention of grandchildren in the Trust deed, explicit language was needed to instead have assets distributed per capita.
Re HJ Bourke Family Trust – High Court (2.06.20)
20.095