HIGHLEY v HIGHLEY [2016] NZHC 1580

HIGHLEY v HIGHLEY [2016] NZHC 1580

The Court vested the trust realty in the remaining and replacement trustees under s 52(1)(b)(i) because Mr Highley, who held the land as trustee, is under a disability and cannot exercise his trustee powers; the trust deed was amended to vest the appointment power in Ms Highley to reflect settlor intent and to address incapacity; commencement by originating application and dispensing with service on the incapacitated respondent were appropriate in the circumstances.

Citation
[2016] NZHC 1580
Parties
Applicant (trustee): Jillian Ann Highley; Applicant (corporate Trustee): Cicero Trustee Services Limited; Applicant (trustee): Karen Mary Bird; Respondent (former Trustee): Roy Kenneth Highley
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 July 2016
Procedural Posture
Trusts (variation and Vesting of Trust Property) / Application for Vesting of Trust Property and Amendment of Trust Deed; Originating Application; Judgment on the Papers
Outcome
Applications granted in full
Legal Topics
Vesting of Trust Property Under S 52 Trustee Act 1956, Replacement and Removal of Trustees, Amendment/variation of Trust Deed, Mental Incapacity of Trustee, Service and Commencement by Originating Application
Trusts Law Property Law Capacity Law Civil Procedure Vesting of Trust Property Under S 52 Trustee Act 1956 Replacement and Removal of Trustees Amendment/variation of Trust Deed Mental Incapacity of Trustee +1 more

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Parties

Jillian Ann Highley

Applicant (trustee)

Cicero Trustee Services Limited

Applicant (corporate Trustee)

Karen Mary Bird

Applicant (trustee)

Roy Kenneth Highley

Respondent (former Trustee)

Procedural Posture

Trusts (variation and Vesting of Trust Property) / Application for Vesting of Trust Property and Amendment of Trust Deed; Originating Application; Judgment on the Papers

Legal Issues

  1. 1 Whether s 52(1)(b)(i) Trustee Act 1956 permits vesting of realty held by a trustee under disability
  2. 2 Whether the Court should amend the trust deed to reallocate the power of appointment where a trustee lacks capacity
  3. 3 Whether the proceeding may properly be commenced by originating application under the High Court Rules

Ratio Decidendi

The Court vested the trust realty in the remaining and replacement trustees under s 52(1)(b)(i) because Mr Highley, who held the land as trustee, is under a disability and cannot exercise his trustee powers; the trust deed was amended to vest the appointment power in Ms Highley to reflect settlor intent and to address incapacity; commencement by originating application and dispensing with service on the incapacitated respondent were appropriate in the circumstances.

Court Disposition

Applications granted in full

Orders

  • Vesting of the Trust's realty interests in the applicants pursuant to s 52(1)(b)(i) Trustee Act 1956
  • Amendment of clause 14.1 of the trust deed as set out in the judgment to vest the power of appointment initially in Jillian Ann Highley and to provide replacement mechanisms where a holder lacks capacity