BRENT and JECENTHO as trustees of the KEN & JOY BRENT FAMILY TRUST v BRENT as trustee of the KEN & JOY BRENT FAMILY TRUST [2020] NZHC 2375

BRENT and JECENTHO as trustees of the KEN & JOY BRENT FAMILY TRUST v BRENT as trustee of the KEN & JOY BRENT FAMILY TRUST [2020] NZHC 2375

Because the respondent trustee was incapacitated, the trust deed permitted two trustees, the sale had been validly ratified by the applicants, all children (adult beneficiaries) consented, and no discretionary beneficiary would be prejudiced, the Court concluded removal of the incapacitated trustee and consequential...

Source-derived case information.

Citation
[2020] NZHC 2375
Parties
Applicant; Trustee of the Ken & Joy Brent Family Trust: Kenyon Lisle Brent; Applicant; Trustee of the Ken & Joy Brent Family Trust: Wendy Raeburn Jecentho; Respondent; Trustee of the Ken & Joy Brent Family Trust: Margaret Joy Brent
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 September 2020
Procedural Posture
Application for Vesting Orders and Removal of Trustee Under Part 19 High Court Rules and S 52 Trustee Act 1956 / Without‑notice Leave to Commence Granted; Originating Application Decided on the Papers and Final Orders Made
Outcome
Application granted. Leave to commence and the originating application for removal of trustee and vesting orders granted; service dispensed; orders may be sealed.
Legal Topics
Removal of Trustee, Vesting Order, Power of Attorney Limits, Inherent Jurisdiction of the High Court, Beneficiary Consent, Trust Administration
Trusts Property Law Elder Law Removal of Trustee Vesting Order Power of Attorney Limits Inherent Jurisdiction of the High Court Beneficiary Consent +1 more

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Parties

Kenyon Lisle Brent

Applicant; Trustee of the Ken & Joy Brent Family Trust

Wendy Raeburn Jecentho

Applicant; Trustee of the Ken & Joy Brent Family Trust

Margaret Joy Brent

Respondent; Trustee of the Ken & Joy Brent Family Trust

Procedural Posture

Application for Vesting Orders and Removal of Trustee Under Part 19 High Court Rules and S 52 Trustee Act 1956 / Without‑notice Leave to Commence Granted; Originating Application Decided on the Papers and Final Orders Made

Legal Issues

  1. 1 Whether the respondent trustee should be removed due to incapacity
  2. 2 Whether the court should make vesting orders for the trust property
  3. 3 Whether an enduring power of attorney could validly execute trust powers

Ratio Decidendi

Because the respondent trustee was incapacitated, the trust deed permitted two trustees, the sale had been validly ratified by the applicants, all children (adult beneficiaries) consented, and no discretionary beneficiary would be prejudiced, the Court concluded removal of the incapacitated trustee and consequential vesting orders were necessary and appropriate and granted the originating application and dispensed with service.

Court Disposition

Application granted. Leave to commence and the originating application for removal of trustee and vesting orders granted; service dispensed; orders may be sealed.

Orders

  • Leave to commence the proceeding by originating application granted
  • Service on the respondent and on any other party dispensed with