BORICH FAMILY TRUST [2014] NZHC 780

BORICH FAMILY TRUST [2014] NZHC 780

Where a trustee is incapable of fulfilling duties due to severe, progressive dementia and that incapacity prevents the trust from functioning to the detriment of beneficiaries, the High Court will, as part of its inherent jurisdiction and in the interests of beneficiaries, remove that trustee without necessarily...

Source-derived case information.

Citation
[2014] NZHC 780
Parties
Trust/subject: Borich Family Trust; Applicant/trustee: Paul Ivan Borich; Applicant/trustee: Jonathan Peter Simcock; Respondent/trustee: Len Ivan Borich
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 April 2014
Procedural Posture
Removal of Trustee Under Trustee Act 1956 / Inherent Jurisdiction / Judgment on Application (on the Papers)
Outcome
Order removing Len Ivan Borich as trustee of the Borich Family Trust.
Legal Topics
Removal of Trustee, Incapacity of Trustee, Court's Inherent Jurisdiction, Trust Administration, Beneficiary Interests
Trusts Equity Elder Law Capacity Civil Procedure Removal of Trustee Incapacity of Trustee Court's Inherent Jurisdiction +2 more

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Parties

Borich Family Trust

Trust/subject

Paul Ivan Borich

Applicant/trustee

Jonathan Peter Simcock

Applicant/trustee

Len Ivan Borich

Respondent/trustee

Procedural Posture

Removal of Trustee Under Trustee Act 1956 / Inherent Jurisdiction / Judgment on Application (on the Papers)

Legal Issues

  1. 1 Whether the court may remove a trustee who is incapable due to dementia
  2. 2 Whether the court may remove a trustee without appointing a replacement
  3. 3 Whether removal is in the best interests of the beneficiaries

Ratio Decidendi

Where a trustee is incapable of fulfilling duties due to severe, progressive dementia and that incapacity prevents the trust from functioning to the detriment of beneficiaries, the High Court will, as part of its inherent jurisdiction and in the interests of beneficiaries, remove that trustee without necessarily appointing a replacement.

Court Disposition

Order removing Len Ivan Borich as trustee of the Borich Family Trust.

Orders

  • That Len Ivan Borich of Auckland, retired, be removed as a trustee of the Borich Family Trust.