Goulevitch and Parkes as trustees of the Iris and Joe Parkes Family Trust v Parkes [2014] NZHC 1571

Goulevitch and Parkes as trustees of the Iris and Joe Parkes Family Trust v Parkes [2014] NZHC 1571

Given uncontroverted medical evidence of irreversible dementia, an enduring power of attorney authorising continued action during incapacity, valid removal under s 43(1) Trustee Act, and beneficiary consent, the Court will regularise title by vesting the property in the remaining trustees and may dispense with service on the incapacitated trustee.

Citation
[2014] NZHC 1571
Parties
Applicant/trustee: Robyn Goulevitch; Applicant/trustee: James Grenville Parkes; Respondent/incapacitated Trustee: Iris Parkes
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 July 2014
Procedural Posture
Trusts Application for Vesting Order Under Trustee Act 1956 / Application on the Papers; Judgment Granting Vesting Order
Outcome
Leave granted and property vested in remaining trustees Robyn Goulevitch and James Grenville Parkes; leave reserved for further implementation orders; no costs order made.
Legal Topics
Removal of Trustee, Vesting Order, Enduring Power of Attorney, Mental Incapacity
Trusts Property Law Elder Law Civil Procedure Removal of Trustee Vesting Order Enduring Power of Attorney Mental Incapacity

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Parties

Robyn Goulevitch

Applicant/trustee

James Grenville Parkes

Applicant/trustee

Iris Parkes

Respondent/incapacitated Trustee

Procedural Posture

Trusts Application for Vesting Order Under Trustee Act 1956 / Application on the Papers; Judgment Granting Vesting Order

Legal Issues

  1. 1 Whether an incapacitated trustee may be removed and the trust property vested in the remaining trustees
  2. 2 Whether leave to apply for a vesting order should be granted and service on the incapacitated trustee dispensed with
  3. 3 Whether removal under s 43(1) Trustee Act 1956 was valid relying on an enduring power of attorney

Ratio Decidendi

Given uncontroverted medical evidence of irreversible dementia, an enduring power of attorney authorising continued action during incapacity, valid removal under s 43(1) Trustee Act, and beneficiary consent, the Court will regularise title by vesting the property in the remaining trustees and may dispense with service on the incapacitated trustee.

Court Disposition

Leave granted and property vested in remaining trustees Robyn Goulevitch and James Grenville Parkes; leave reserved for further implementation orders; no costs order made.

Orders

  • Leave granted to apply for a vesting order and service on Iris Parkes dispensed with
  • The property Flat 1/10, Ford Avenue, Kamo, certificate of title NA101A/510 is vested in the remaining trustees Robyn Goulevitch and James Grenville Parkes