DAVID KEITH FULLERTON [2017] NZHC 1310

DAVID KEITH FULLERTON [2017] NZHC 1310

An originating application under r19.5 was appropriate; under s52(1) Trustee Act 1956 the Court will vest the property title in the sole surviving trustee, but may impose conditions (here withholding distribution of sale proceeds) to protect potential interested parties while a will validation under the Wills Act 2007 is resolved.

Citation
[2017] NZHC 1310
Parties
Applicant / Sole Surviving Trustee: David Keith Fullerton; Trust: GP & N Fullerton Family Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 June 2017
Procedural Posture
Application Under Part 19 High Court Rules and S52 Trustee Act 1956 / Originating Application for Vesting Order
Outcome
Vesting order granted under s52(1) of the Trustee Act 1956, subject to condition that proceeds of sale are not distributed pending resolution of will validation
Legal Topics
Vesting of Trust Property, Trustee Appointment, Will Validation, Originating Application Procedure
Trusts Property Law Succession Civil Procedure Vesting of Trust Property Trustee Appointment Will Validation Originating Application Procedure

Case Brief

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Parties

David Keith Fullerton

Applicant / Sole Surviving Trustee

GP & N Fullerton Family Trust

Trust

Procedural Posture

Application Under Part 19 High Court Rules and S52 Trustee Act 1956 / Originating Application for Vesting Order

Legal Issues

  1. 1 Whether the Court should make a vesting order under s52(1) of the Trustee Act 1956 to vest title in the sole surviving trustee
  2. 2 Whether an originating application under r19.5 of the High Court Rules 2016 is appropriate
  3. 3 Whether the proceeds of sale should be released pending validation of an invalid will under the Wills Act 2007

Ratio Decidendi

An originating application under r19.5 was appropriate; under s52(1) Trustee Act 1956 the Court will vest the property title in the sole surviving trustee, but may impose conditions (here withholding distribution of sale proceeds) to protect potential interested parties while a will validation under the Wills Act 2007 is resolved.

Court Disposition

Vesting order granted under s52(1) of the Trustee Act 1956, subject to condition that proceeds of sale are not distributed pending resolution of will validation

Orders

  • Proceeding may commence by way of originating application under r19.5 High Court Rules 2016
  • Title to property at 121 Cobham Drive, Hamilton vested in applicant, David Keith Fullerton, as sole surviving trustee, pursuant to Trustee Act 1956 s52(1), subject to the condition that proceeds of sale shall not be distributed pending proper resolution of the validation of the will