Abstract
This paper will expound a theoretical approach for analysing super discretionary trusts and their validity in order to justify the correctness of the high-level reasons recently advanced by the Supreme Court of New Zealand and the Privy Council. This paper will also evaluate the application of these high-level reasons and the conclusions that were drawn with reference to the theories. The approach adopted by the courts has exposed a justificatory gap with regard to the reasons why a super discretionary trust is problematic (or not). The core contention of this paper is that this justificatory gap can be rectified by looking to the Persistent Rights Thesis (PRT) and the Functional Thesis (FT) as theories of the trust. The theoretical approach that this paper develops to fill the justificatory gap and evaluate judicial reasoning and conclusions will be premised upon the theories’ propounded interpretation of the minimum characteristics of the trust. Through the application of the theories, it will be argued that the impugned high level reasons and their application are generally justifiable although some need refinement.