WINWOOD v WINWOOD [2015] NZHC 946

WINWOOD v WINWOOD [2015] NZHC 946

Given uncontested medical evidence of total incapacity, service on the defendant would serve no useful purpose and was dispensed with; continuing trustees had validly removed and replaced the incapacitated trustee and the Court vested the trust land in the current trustees under s52(1)(a) to enable them to deal with the property; no litigation guardian was required.

Citation
[2015] NZHC 946
Parties
Plaintiffs / Trustees: Ralph Gilbert Winwood, Alan Raymond Macdonald and Gaynor Carole Kerr as trustees of the Wingill Trust; Defendant / Former Trustee (incapacitated): Margaret Winifred Winwood
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 May 2015
Procedural Posture
Application for Vesting Order Under the Trustee Act / Determined on the Papers; Judgment on Application
Outcome
Application granted: service on defendant dispensed; vesting order made; no litigation guardian required; no order as to costs
Legal Topics
Vesting Orders, Appointment and Removal of Trustees, Dispensing With Service, Representation of Incapacitated Persons, Enduring Power of Attorney
Trusts Property Civil Procedure Capacity/incapacity Vesting Orders Appointment and Removal of Trustees Dispensing With Service Representation of Incapacitated Persons +1 more

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Parties

Ralph Gilbert Winwood, Alan Raymond Macdonald and Gaynor Carole Kerr as trustees of the Wingill Trust

Plaintiffs / Trustees

Margaret Winifred Winwood

Defendant / Former Trustee (incapacitated)

Procedural Posture

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

Legal Issues

  1. 1 Whether the incapacitated trustee could be validly removed and replaced
  2. 2 Whether service on the incapacitated defendant should be dispensed with
  3. 3 Whether other beneficiaries require notice of the application

Ratio Decidendi

Given uncontested medical evidence of total incapacity, service on the defendant would serve no useful purpose and was dispensed with; continuing trustees had validly removed and replaced the incapacitated trustee and the Court vested the trust land in the current trustees under s52(1)(a) to enable them to deal with the property; no litigation guardian was required.

Court Disposition

Application granted: service on defendant dispensed; vesting order made; no litigation guardian required; no order as to costs

Orders

  • Service of this proceeding on Margaret Winifred Winwood is dispensed with.
  • Service of the proceedings is not required to be made on any other person.