MACPHERSON v MACPHERSON [2018] NZHC 240

MACPHERSON v MACPHERSON [2018] NZHC 240

Medical evidence established the trustee's irreversible severe dementia rendering him incapable of performing trustee duties; because the power to appoint trustees required joint action and could not be exercised while he remained a trustee, the Court properly exercised its inherent jurisdiction to remove him as trustee and, pursuant to s52 Trustee Act 1956, vested the trust land in the remaining trustees to allow proper administration and sale in beneficiaries' best interests.

Citation
[2018] NZHC 240
Parties
Applicant/trustee: Anthony James Macpherson; Applicant/trustee: David Grant Macpherson; Applicant/trustee: Jan Macpherson; Respondent/named Trustee: Peter William Edgar Macpherson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 February 2018
Procedural Posture
Trusts Removal of Trustee and Vesting Order / Originating Application Heard on the Papers
Outcome
Application granted: respondent removed as trustee and trust property vested in applicants
Legal Topics
Removal of Trustee, Vesting Order Under Trustee Act 1956 S52, Mental Capacity/dementia, Inherent Jurisdiction of the Court, Appointment of Trustees S51 Trustee Act 1956
Trusts Equity Property Law Elder Law Removal of Trustee Vesting Order Under Trustee Act 1956 S52 Mental Capacity/dementia Inherent Jurisdiction of the Court +1 more

Case Brief

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Parties

Anthony James Macpherson

Applicant/trustee

David Grant Macpherson

Applicant/trustee

Jan Macpherson

Applicant/trustee

Peter William Edgar Macpherson

Respondent/named Trustee

Procedural Posture

Trusts Removal of Trustee and Vesting Order / Originating Application Heard on the Papers

Legal Issues

  1. 1 Whether the Court may remove a trustee under its inherent jurisdiction
  2. 2 Whether the trustee's dementia renders him 'under disability' for the purposes of s52 Trustee Act 1956
  3. 3 Whether a vesting order of trust land in the remaining trustees is appropriate

Ratio Decidendi

Medical evidence established the trustee's irreversible severe dementia rendering him incapable of performing trustee duties; because the power to appoint trustees required joint action and could not be exercised while he remained a trustee, the Court properly exercised its inherent jurisdiction to remove him as trustee and, pursuant to s52 Trustee Act 1956, vested the trust land in the remaining trustees to allow proper administration and sale in beneficiaries' best interests.

Court Disposition

Application granted: respondent removed as trustee and trust property vested in applicants

Orders

  • Peter William Edgar Macpherson is removed as a trustee of the Peter and Joan Macpherson Trust
  • The property at 30A Vauxhall Road, Devonport, Auckland (Lot 2 Deposited Plan 82901, Identifier NA43D/850) is vested in the applicants