HARRIS v MCLEAN [2017] NZHC 1669

HARRIS v MCLEAN [2017] NZHC 1669

Because the defendant was shown by medical evidence to lack capacity and had been validly removed as trustee under s43(1), the Court exercised its power under s52(1)(h) of the Trustee Act 1956 to vest the trust's half‑share of the property in the named trustees and dispensed with service; costs of the application were ordered to be paid from the trust funds.

Citation
[2017] NZHC 1669
Parties
Plaintiff (trustee): Philip George Harris; Plaintiff (trustee): Peter Ross McLean; Plaintiff (trustee): Elisa Ainslee McLean; Plaintiff (trustee): Lesley Anne McLean; Defendant (settlor / Former Trustee): Laurel Maude McLean
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 July 2017
Procedural Posture
Application for a Vesting Order Under the Trustee Act 1956 / Judgment on the Papers; Application for Vesting Order
Outcome
Vesting order granted; service dispensed; costs to be paid from trust funds
Legal Topics
Vesting Order, Removal and Appointment of Trustees, Enduring Power of Attorney, Dispensing With Service, Costs Payable From Trust Funds
Trusts Property Law Mental Capacity Land Registration Vesting Order Removal and Appointment of Trustees Enduring Power of Attorney Dispensing With Service +1 more

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Parties

Philip George Harris

Plaintiff (trustee)

Peter Ross McLean

Plaintiff (trustee)

Elisa Ainslee McLean

Plaintiff (trustee)

Lesley Anne McLean

Plaintiff (trustee)

Laurel Maude McLean

Defendant (settlor / Former Trustee)

Procedural Posture

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

Legal Issues

  1. 1 Whether service on the defendant should be dispensed with because of her incapacity
  2. 2 Whether a vesting order should be made under s52(1)(h) Trustee Act 1956 to transfer the trust's half-share into the names of the current trustees
  3. 3 Whether costs of the application should be paid from the trust funds

Ratio Decidendi

Because the defendant was shown by medical evidence to lack capacity and had been validly removed as trustee under s43(1), the Court exercised its power under s52(1)(h) of the Trustee Act 1956 to vest the trust's half‑share of the property in the named trustees and dispensed with service; costs of the application were ordered to be paid from the trust funds.

Court Disposition

Vesting order granted; service dispensed; costs to be paid from trust funds

Orders

  • Order dispensing with service on Laurel Maude McLean
  • Order vesting the half share of the property at 184 Granada Street, Mt Maunganui (Certificate of Title SA51B/854) currently held by Laurel Maude McLean and Philip George Harris in the names of Philip George Harris, Peter Ross McLean, Elisa Ainslee McLean and Lesley Anne McLean as trustees of the Laurel McLean Family...