RE: ESTATE ELIZABETH JOHANNE WEARN [2019] NZHC 2763

RE: ESTATE ELIZABETH JOHANNE WEARN [2019] NZHC 2763

Given the evidence that one trustee lacked capacity, one trustee was deceased and one had retired, and on the basis of affidavits filed and adequate service directed and effected with no opposition, the Court was satisfied under s 52 Trustee Act 1956 that it was expedient to vest the specified trust properties in the continuing trustees and accordingly made the vesting orders.

Citation
[2019] NZHC 2763
Parties
Applicant (trustee of the Wearn Family Trust): Allister John Wearn; Applicant (trustee of the Wearn Family Trust): Patrick Noel Rotherham; First Respondent: John Stuart Wearn; Second Respondent (trustee of the Estate of Elizabeth Johanne Wearn): Allister John Wearn; Second Respondent (trustee of the Estate of Elizabeth Johanne Wearn): Patrick Noel Rotherham
Court
High Court
Jurisdiction
New Zealand
Judgment Date
29 October 2019
Procedural Posture
Application Under Trustee Act 1956 S 52 / Hearing and Determination (application for Vesting Orders, Unopposed)
Outcome
Application granted; trust properties vested in the continuing trustees Allister John Wearn and Patrick Noel Rotherham
Legal Topics
Trustee Appointment, Vesting of Trust Property, Mental Incapacity of Trustee, Service and Notice
Trusts Property Civil Procedure Equity Trustee Appointment Vesting of Trust Property Mental Incapacity of Trustee Service and Notice

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Parties

Allister John Wearn

Applicant (trustee of the Wearn Family Trust)

Patrick Noel Rotherham

Applicant (trustee of the Wearn Family Trust)

John Stuart Wearn

First Respondent

Allister John Wearn

Second Respondent (trustee of the Estate of Elizabeth Johanne Wearn)

Patrick Noel Rotherham

Second Respondent (trustee of the Estate of Elizabeth Johanne Wearn)

Procedural Posture

Application Under Trustee Act 1956 S 52 / Hearing and Determination (application for Vesting Orders, Unopposed)

Legal Issues

  1. 1 Whether it is expedient under s 52 Trustee Act 1956 to appoint new trustees and vest trust property in continuing trustees
  2. 2 Whether service requirements were satisfied and effect of absence of opposition
  3. 3 Replacement of trustees due to death, retirement and lack of mental capacity

Ratio Decidendi

Given the evidence that one trustee lacked capacity, one trustee was deceased and one had retired, and on the basis of affidavits filed and adequate service directed and effected with no opposition, the Court was satisfied under s 52 Trustee Act 1956 that it was expedient to vest the specified trust properties in the continuing trustees and accordingly made the vesting orders.

Court Disposition

Application granted; trust properties vested in the continuing trustees Allister John Wearn and Patrick Noel Rotherham

Orders

  • The trust properties known as (a) 30 Whitewash Head Road, Sumner, Christchurch 8081 (Lot 1 DP 14731 and Lot 2 DP 348851, CT 200594) and (b) Waitawa Bay, Bay of Many Coves, Queen Charlotte Sound, Marlborough 8888 (Lot 59 DP 1284, CT MB48/232) are vested in the names of the continuing trustees Allister John Wearn and...
  • No issue as to costs.