SHAW v SHAW [2020] NZHC 2910

SHAW v SHAW [2020] NZHC 2910

Because Derrick lacks mental capacity and remains a trustee, the Court exercised its inherent jurisdiction (supported by ss 51 and 52 Trustee Act 1956) to remove him as trustee and, to enable proper administration for the beneficiaries, vested the estate's one-half share in the remaining trustees; leave under Part 19 and dispensation of service and a litigation guardian were justified as the application was uncontested and no party would be prejudiced.

Citation
[2020] NZHC 2910
Parties
Applicant Trustee of the Estate of Myra Loraine Shaw: David Robert Shaw; Applicant Trustee of the Estate of Myra Loraine Shaw: Stuart John Shaw; Respondent Trustee and Spouse of Deceased: Derrick Henry Shaw
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 November 2020
Procedural Posture
Application for Vesting Order Under the Trustee Act 1956 / Determined on the Papers; Final Judgment
Outcome
Application granted in full
Legal Topics
Removal of Trustee, Vesting Order Under S52 Trustee Act 1956, Mental Incapacity and Trusteeship, Enduring Power of Attorney, Dispensing With Service and Litigation Guardian, Part 19 High Court Rules Leave
Trusts Succession/wills Property Law Equity Civil Procedure Capacity Law Removal of Trustee Vesting Order Under S52 Trustee Act 1956 +4 more

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Parties

David Robert Shaw

Applicant Trustee of the Estate of Myra Loraine Shaw

Stuart John Shaw

Applicant Trustee of the Estate of Myra Loraine Shaw

Derrick Henry Shaw

Respondent Trustee and Spouse of Deceased

Procedural Posture

Application for Vesting Order Under the Trustee Act 1956 / Determined on the Papers; Final Judgment

Legal Issues

  1. 1 Whether a trustee (Derrick) who lacks mental capacity should be removed
  2. 2 Whether the Court should vest the estate's one-half share in the continuing trustees under s52 Trustee Act 1956
  3. 3 Whether leave to commence under Part 19 High Court Rules is appropriate

Ratio Decidendi

Because Derrick lacks mental capacity and remains a trustee, the Court exercised its inherent jurisdiction (supported by ss 51 and 52 Trustee Act 1956) to remove him as trustee and, to enable proper administration for the beneficiaries, vested the estate's one-half share in the remaining trustees; leave under Part 19 and dispensation of service and a litigation guardian were justified as the application was uncontested and no party would be prejudiced.

Court Disposition

Application granted in full

Orders

  • Proceeding may be commenced by originating application under Part 19 High Court Rules 2016
  • Service of the proceeding on Derrick Henry Shaw is dispensed with