HUNTER & ORS v TAYLOR [2015] NZHC 922

HUNTER & ORS v TAYLOR [2015] NZHC 922

Where a trustee has been replaced due to certified mental incapacity and a vesting order is necessary to enable transfer on sale, the court will make a vesting order under s52 to vest the trustee's interest in the replacement trustee to facilitate sale and proper investment of proceeds for the life tenant's benefit.

Citation
[2015] NZHC 922
Parties
Plaintiff (trustee): CATHERINE GRACE HUNTER; Plaintiff (trustee): JOHN ALEXANDER WILLIAMSON; Plaintiff (trustee): JOHN GORDON RAYNER; Plaintiff (replacement Trustee): EVELYN JOAN MCDOUGALL; Defendant (life Tenant and Former Trustee): DOROTHY IRENE TAYLOR
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 May 2015
Procedural Posture
Vesting Order Under Trustee Act 1956 (s52) / Application for Vesting Order Dealt With on the Papers; Interlocutory Application for Vesting Order
Outcome
Vesting order granted under s52 of the Trustee Act 1956
Legal Topics
Vesting Orders, Trustee Removal for Incapacity, Enduring Power of Attorney, Sale of Trust Property
Trusts Property Succession Vesting Orders Trustee Removal for Incapacity Enduring Power of Attorney Sale of Trust Property

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Parties

CATHERINE GRACE HUNTER

Plaintiff (trustee)

JOHN ALEXANDER WILLIAMSON

Plaintiff (trustee)

JOHN GORDON RAYNER

Plaintiff (trustee)

EVELYN JOAN MCDOUGALL

Plaintiff (replacement Trustee)

DOROTHY IRENE TAYLOR

Defendant (life Tenant and Former Trustee)

Procedural Posture

Vesting Order Under Trustee Act 1956 (s52) / Application for Vesting Order Dealt With on the Papers; Interlocutory Application for Vesting Order

Legal Issues

  1. 1 Whether a vesting order under s52 of the Trustee Act 1956 should be made to vest the trustee interest in replacement trustee where original trustee is mentally incapacitated
  2. 2 Whether procedural safeguards (service, representation) could be dispensed with and the matter determined on the papers
  3. 3 Whether a sale of the property and investment of proceeds for the life tenant is appropriate to meet costs and needs

Ratio Decidendi

Where a trustee has been replaced due to certified mental incapacity and a vesting order is necessary to enable transfer on sale, the court will make a vesting order under s52 to vest the trustee's interest in the replacement trustee to facilitate sale and proper investment of proceeds for the life tenant's benefit.

Court Disposition

Vesting order granted under s52 of the Trustee Act 1956

Orders

  • An order under s52 of the Trustee Act 1956 vesting Dorothy Irene Taylor's interest as trustee in the land contained in OT18B/446 in the name of the replacement trustee, Evelynne Joan McDougall, so that the registered proprietors as to the one half share owned by the trustees shall be Catharine Grace Hunter, John...
  • That the costs of this application be met from the proceeds of sale.