Re: DRAPER-KIDD [2017] NZHC 2497

Re: DRAPER-KIDD [2017] NZHC 2497

Leave to commence by originating application was granted and, on the evidence including the deed of appointment and a medical certificate establishing Howard's dementia and incapacity, the Court exercised its power under s52(1)(b)(i) Trustee Act 1956 to vest the listed land in Margaret Alison Kidd and Rebecca Margaret Draper-Kidd as trustees of the Kidd Trust.

Citation
[2017] NZHC 2497
Parties
Applicant Proposed Trustee: Rebecca Margaret Draper-Kidd; Existing Trustee / Proposed Co Trustee: Margaret Alison Kidd; Former Trustee Incapacitated: Howard Albert Thomas Kidd; Trust: Kidd Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 October 2017
Procedural Posture
Application Under Trustee Act 1956 (vesting of Land and Appointment of Trustee) / Hearing on the Papers Judgment on Originating Application
Outcome
Granted. Leave to commence by originating application under r19.5 granted; vesting orders made under s52(1)(b)(i) Trustee Act 1956 vesting specified land in Margaret Alison Kidd and Rebecca Margaret Draper-Kidd as trustees of the Kidd Trust; leave reserved for further orders.
Legal Topics
Appointment of Trustee, Vesting of Land Under Trustee Act S52, Mental Capacity of Trustee, Leave to Commence by Originating Application (high Court Rules)
Trusts Property Law Capacity Law Civil Procedure Appointment of Trustee Vesting of Land Under Trustee Act S52 Mental Capacity of Trustee Leave to Commence by Originating Application (high Court Rules)

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Parties

Rebecca Margaret Draper-Kidd

Applicant Proposed Trustee

Margaret Alison Kidd

Existing Trustee / Proposed Co Trustee

Howard Albert Thomas Kidd

Former Trustee Incapacitated

Kidd Trust

Trust

Procedural Posture

Application Under Trustee Act 1956 (vesting of Land and Appointment of Trustee) / Hearing on the Papers Judgment on Originating Application

Legal Issues

  1. 1 Whether leave should be given to commence proceedings by originating application under r19.5 High Court Rules
  2. 2 Whether land currently in the names of Howard and Margaret can be vested in Margaret and Rebecca under s52(1)(b)(i) Trustee Act 1956
  3. 3 Whether medical evidence establishes Howard's incapacity sufficient to remove him as trustee

Ratio Decidendi

Leave to commence by originating application was granted and, on the evidence including the deed of appointment and a medical certificate establishing Howard's dementia and incapacity, the Court exercised its power under s52(1)(b)(i) Trustee Act 1956 to vest the listed land in Margaret Alison Kidd and Rebecca Margaret Draper-Kidd as trustees of the Kidd Trust.

Court Disposition

Granted. Leave to commence by originating application under r19.5 granted; vesting orders made under s52(1)(b)(i) Trustee Act 1956 vesting specified land in Margaret Alison Kidd and Rebecca Margaret Draper-Kidd as trustees of the Kidd Trust; leave reserved for further orders.

Orders

  • Leave granted to commence proceedings by way of an originating application under r19.5 High Court Rules.
  • Pursuant to s52(1)(b)(i) Trustee Act 1956, the following land currently in the names of Howard Albert Thomas Kidd and Margaret Alison Kidd is vested in Margaret Alison Kidd and Rebecca Margaret Draper-Kidd as trustees of the Kidd Trust: CT SA1076/95 (Lot 2 Deposited Plan South Auckland 650), CT SA1080/25 (Lot 1...