RE JAMIESON [2020] NZHC 942.

RE JAMIESON [2020] NZHC 942.

Because Gretta lacked capacity and the enduring power could not operate for her trustee-held share, and because she had been replaced as trustee under s43 with beneficiary consents in place, the Court properly dispensed with a litigation guardian and service and granted a vesting order under s52 to vest the Estate's half-share in the named trustees to enable the sale while preserving Gretta's life interest.

Citation
[2020] NZHC 942
Parties
Applicant, Trustee of the Estate of James Stuart Jamieson: Bryan Stuart Jamieson; Applicant, Trustee of the Estate of James Stuart Jamieson: Raymond Peter Jamieson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 May 2020
Procedural Posture
Vesting Order Application Under S52 Trustee Act 1956 / Originating Application; Hearing on the Papers; Judgment Delivered 8 May 2020
Outcome
Application granted: vesting order made; orders dispensing with litigation guardian and with service
Legal Topics
Vesting Order, Trustee Removal, Enduring Power of Attorney, Capacity, Service Dispensation, Litigation Guardian
Trusts Estate Administration Property Law Civil Procedure Vesting Order Trustee Removal Enduring Power of Attorney Capacity +2 more

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Parties

Bryan Stuart Jamieson

Applicant, Trustee of the Estate of James Stuart Jamieson

Raymond Peter Jamieson

Applicant, Trustee of the Estate of James Stuart Jamieson

Procedural Posture

Vesting Order Application Under S52 Trustee Act 1956 / Originating Application; Hearing on the Papers; Judgment Delivered 8 May 2020

Legal Issues

  1. 1 Whether an originating application procedure is appropriate for a vesting order
  2. 2 Whether a litigation guardian must be appointed for an incapacitated person (Gretta Mary Jamieson)
  3. 3 Whether service of the application on Gretta and other parties can be dispensed with

Ratio Decidendi

Because Gretta lacked capacity and the enduring power could not operate for her trustee-held share, and because she had been replaced as trustee under s43 with beneficiary consents in place, the Court properly dispensed with a litigation guardian and service and granted a vesting order under s52 to vest the Estate's half-share in the named trustees to enable the sale while preserving Gretta's life interest.

Court Disposition

Application granted: vesting order made; orders dispensing with litigation guardian and with service

Orders

  • Leave granted to proceed by originating application.
  • Order dispensing with the appointment of a litigation guardian for Gretta Mary Jamieson.