Re Whelan [2018] NZHC 2751

Re Whelan [2018] NZHC 2751

Because Rosemary Whelan (Dawn) has been medically certified as lacking capacity, the court exercised its statutory powers under ss52 and 71 of the Trustee Act 1956 and r19.5 High Court Rules to vest the relevant trust properties in the current trustees, vest/remove the power of appointment where necessary, permit payment of costs from trust assets, and allow the proceeding as an originating application.

Citation
[2018] NZHC 2751
Parties
Trustee Applicant: Francis Gordon Whelan; Trustee Applicant: Kris Whelan; Trustee Applicant: Josie Whelan; Trustee Applicant: Elaine Melva Murphy; Corporate Trustee Applicant: Simco Trustees Limited; Settlor and Incapacitated Person: Rosemary Whelan (Dawn)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 October 2018
Procedural Posture
Trusts Application Under the Trustee Act 1956 / Judgment on the Papers; Originating Application
Outcome
Application granted to the extent of vesting property and vesting/removal of appointment powers; costs ordered to be paid from trust assets; permission granted to proceed by originating application; draft orders to be finalised and sealed
Legal Topics
Vesting Orders, Removal of Trustee Powers, Appointment of Trustees, Payment of Costs From Trust Assets, Originating Application Procedure
Trusts Mental Capacity Property Law Civil Procedure Vesting Orders Removal of Trustee Powers Appointment of Trustees Payment of Costs From Trust Assets +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 8 Party arguments 1
Sign in to unlock

Parties

Francis Gordon Whelan

Trustee Applicant

Kris Whelan

Trustee Applicant

Josie Whelan

Trustee Applicant

Elaine Melva Murphy

Trustee Applicant

Simco Trustees Limited

Corporate Trustee Applicant

Rosemary Whelan (Dawn)

Settlor and Incapacitated Person

Procedural Posture

Trusts Application Under the Trustee Act 1956 / Judgment on the Papers; Originating Application

Legal Issues

  1. 1 Whether the court should remove the settlor's power of appointment due to incapacity
  2. 2 Whether the court should vest the trust properties in the newly constituted trustees under s52 Trustee Act 1956
  3. 3 Whether costs of the applications should be payable from the respective trust assets under s71 Trustee Act 1956

Ratio Decidendi

Because Rosemary Whelan (Dawn) has been medically certified as lacking capacity, the court exercised its statutory powers under ss52 and 71 of the Trustee Act 1956 and r19.5 High Court Rules to vest the relevant trust properties in the current trustees, vest/remove the power of appointment where necessary, permit payment of costs from trust assets, and allow the proceeding as an originating application.

Court Disposition

Application granted to the extent of vesting property and vesting/removal of appointment powers; costs ordered to be paid from trust assets; permission granted to proceed by originating application; draft orders to be finalised and sealed

Orders

  • Remove the powers of appointment under clause 9 from Rosemary (Dawn) Whelan and vest those powers in Kris Whelan and Josie Whelan
  • Vest the trust property at Raumati Beach in Kris Whelan, Josie Whelan and Francis Gordon Whelan