PRICE v PRICE [2020] NZHC 2572

PRICE v PRICE [2020] NZHC 2572

The Court granted leave to use the originating application procedure and, because David is mentally incapacitated and would not understand service and it would cause distress, directed that he need not be served and need not have a litigation guardian. Given the s 43 removal of David and his incapacity to execute transfer documents, a vesting order is appropriate to enable registration of the property in the trustee, but the Court required confirmation that the co-beneficiary (Miriam) consents to Mark acting as sole trustee or that a second trustee be appointed before making the vesting order.

Citation
[2020] NZHC 2572
Parties
Plaintiff; Executor and Trustee of the Estate of Verna Price: Mark Allan Price; Defendant; Former Trustee and Life Interest Beneficiary: David Anthony Price
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 October 2020
Procedural Posture
Application for Vesting Order Under the Trustee Act 1956 / Application Determined on the Papers; Judgment Delivered
Outcome
Application granted in part: leave to use originating application granted; David not required to be served and not required to have a litigation guardian; vesting order to be made subject to confirmation of sister's consent or appointment of an additional trustee
Legal Topics
Vesting Order, Removal of Trustee, Litigation Guardian, Service of Proceedings, Use of Originating Application, Appointment of Additional Trustee
Trusts Succession/estates Civil Procedure Capacity/mental Incapacity Vesting Order Removal of Trustee Litigation Guardian Service of Proceedings +2 more

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Parties

Mark Allan Price

Plaintiff; Executor and Trustee of the Estate of Verna Price

David Anthony Price

Defendant; Former Trustee and Life Interest Beneficiary

Procedural Posture

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

Legal Issues

  1. 1 Whether leave to use the originating application procedure should be granted
  2. 2 Whether the mentally incapacitated defendant must be served and require a litigation guardian
  3. 3 Whether a vesting order under s 52 of the Trustee Act 1956 should be made to vest property in the remaining trustee

Ratio Decidendi

The Court granted leave to use the originating application procedure and, because David is mentally incapacitated and would not understand service and it would cause distress, directed that he need not be served and need not have a litigation guardian. Given the s 43 removal of David and his incapacity to execute transfer documents, a vesting order is appropriate to enable registration of the property in the trustee, but the Court required confirmation that the co-beneficiary (Miriam) consents to Mark acting as sole trustee or that a second trustee be appointed before making the vesting order.

Court Disposition

Application granted in part: leave to use originating application granted; David not required to be served and not required to have a litigation guardian; vesting order to be made subject to confirmation of sister's consent or appointment of an additional trustee

Orders

  • Leave granted to use the originating application procedure
  • David need not be served with the proceedings