O'SHEA & ANOR v O'SHEA [2018] NZHC 3035

O'SHEA & ANOR v O'SHEA [2018] NZHC 3035

Because the respondent lacked capacity (supported by medical evidence), the enduring power of attorney and deed could not be used for registration, and the applicants were the trustees of the Trust, the Court properly exercised its power under the Trustee Act to make a vesting order vesting the property in the named trustees and dispensed with service.

Citation
[2018] NZHC 3035
Parties
Applicant / Trustee: Bethley Rosemary O'Shea; Applicant / Trustee: Gunson McLean Trustee Services Limited; Respondent / Beneficiary: Thomas Daniel O'Shea
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 November 2018
Procedural Posture
Application for Vesting Order Under Trustee Act 1956 / Judgment on the Papers
Outcome
Vesting order made; service dispensed with; costs to be paid from Trust funds
Legal Topics
Vesting Order, Trustee Powers, Enduring Power of Attorney, Capacity
Trusts Property Law Elder Law Conveyancing Vesting Order Trustee Powers Enduring Power of Attorney Capacity

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Parties

Bethley Rosemary O'Shea

Applicant / Trustee

Gunson McLean Trustee Services Limited

Applicant / Trustee

Thomas Daniel O'Shea

Respondent / Beneficiary

Procedural Posture

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

Legal Issues

  1. 1 Whether a vesting order should be made to transfer legal title to trustees
  2. 2 Whether service on the respondent could be dispensed with given his incapacity and lack of appearance

Ratio Decidendi

Because the respondent lacked capacity (supported by medical evidence), the enduring power of attorney and deed could not be used for registration, and the applicants were the trustees of the Trust, the Court properly exercised its power under the Trustee Act to make a vesting order vesting the property in the named trustees and dispensed with service.

Court Disposition

Vesting order made; service dispensed with; costs to be paid from Trust funds

Orders

  • Property at 14 Norfolk Street, Whangarei (CFR NA139D/361) vested in the names of Bethley Rosemary O'Shea and Gunson McLean Trustee Services Limited to hold as trustees for the T D & B R O'Shea Family Trust.
  • Service on Thomas Daniel O'Shea is dispensed with.