JONATHAN MARK GORDON AS TRUSTEE OF THE DB ONE FAMILY TRUST [2018] NZHC 600

JONATHAN MARK GORDON AS TRUSTEE OF THE DB ONE FAMILY TRUST [2018] NZHC 600

The evidence established that the property was held by the incapacitated trustee and that he lacked capacity; accordingly the court exercised its power under s52 of the Trustee Act 1956 to vest the property in the continuing trustees and concluded that service on the incapacitated trustee was not required.

Citation
[2018] NZHC 600
Parties
Applicant / Trustee (db One Family Trust): Jonathan Mark Gordon; Original Trustee (incapacitated): Colin Norman Gordon; Continuing Trustee (db One Family Trust): Susan Gordon
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 April 2018
Procedural Posture
Trust Vesting Application Under Trustee Act 1956 S52 / Decision on Application (judgment on the Papers)
Outcome
Vesting order granted: property vested in the continuing trustees of the DB One Family Trust.
Legal Topics
Vesting of Trust Property, Trustee Incapacity, Appointment of Trustees, Section 52 Trustee Act 1956, Service Without Notice
Trusts Equity Property Law Civil Procedure Capacity Law Vesting of Trust Property Trustee Incapacity Appointment of Trustees +2 more

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Parties

Jonathan Mark Gordon

Applicant / Trustee (db One Family Trust)

Colin Norman Gordon

Original Trustee (incapacitated)

Susan Gordon

Continuing Trustee (db One Family Trust)

Procedural Posture

Trust Vesting Application Under Trustee Act 1956 S52 / Decision on Application (judgment on the Papers)

Legal Issues

  1. 1 Whether property held by an incapacitated trustee should be vested in the continuing trustees
  2. 2 Whether s52 of the Trustee Act 1956 authorises vesting without service when a trustee lacks capacity
  3. 3 Whether service on the incapacitated trustee was required prior to vesting

Ratio Decidendi

The evidence established that the property was held by the incapacitated trustee and that he lacked capacity; accordingly the court exercised its power under s52 of the Trustee Act 1956 to vest the property in the continuing trustees and concluded that service on the incapacitated trustee was not required.

Court Disposition

Vesting order granted: property vested in the continuing trustees of the DB One Family Trust.

Orders

  • Property described as Part Section 75 District of Waimea South contained in Certificate of Title NL 133/33 is vested in Jonathan Mark Gordon and Susan Gordon as the current trustees of the DB One Family Trust.
  • Service on Colin Norman Gordon was not required due to his lack of capacity.