FL Trustees 2012 Limited & Ors, as trustees of the Valerie Moore Family Trust v Moore [2019] NZHC 1588 [9 July 2019]

FL Trustees 2012 Limited & Ors, as trustees of the Valerie Moore Family Trust v Moore [2019] NZHC 1588 [9 July 2019]

Medical evidence established Mrs Moore's mental incapacity; under the trust deed and s 43(1) Trustee Act 1956 the power of appointment passed to FL Trustees who, exercising powers under the deed, validly retired Mrs Moore and appointed Michelle and William; the Court, satisfied vesting is expedient and necessary for the new trustees to perform their duties, exercised its s 52 power to vest the two titles in the new trustees; appointment of a litigation guardian was dispensed with as futile given incapacity and the limited, mechanical nature of the relief.

Citation
[2019] NZHC 1588
Parties
Plaintiff Trustee: FL Trustees 2012 Limited; Plaintiff Trustee: Michelle Gaylene Moore; Plaintiff Trustee: William John Moore; Defendant, Settlor and Former Trustee: Valerie Margaret Moore
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 July 2019
Procedural Posture
Application Under Trustee Act 1956 S 52 for Vesting Orders / Hearing and Oral Judgment on Formal Proof
Outcome
Vesting orders granted in favour of the newly appointed trustees
Legal Topics
Vesting Orders, Removal and Appointment of Trustees, Mental Incapacity, Power of Appointment, Litigation Guardian Discretion
Trusts Property Law Elder Law Civil Procedure Vesting Orders Removal and Appointment of Trustees Mental Incapacity Power of Appointment +1 more

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Parties

FL Trustees 2012 Limited

Plaintiff Trustee

Michelle Gaylene Moore

Plaintiff Trustee

William John Moore

Plaintiff Trustee

Valerie Margaret Moore

Defendant, Settlor and Former Trustee

Procedural Posture

Application Under Trustee Act 1956 S 52 for Vesting Orders / Hearing and Oral Judgment on Formal Proof

Legal Issues

  1. 1 Whether Mrs Moore was mentally incapable for trust purposes
  2. 2 Whether the power of appointment passed to the remaining trustee under the trust deed and s 43(1) Trustee Act 1956
  3. 3 Whether FL Trustees validly removed and replaced Mrs Moore as trustee

Ratio Decidendi

Medical evidence established Mrs Moore's mental incapacity; under the trust deed and s 43(1) Trustee Act 1956 the power of appointment passed to FL Trustees who, exercising powers under the deed, validly retired Mrs Moore and appointed Michelle and William; the Court, satisfied vesting is expedient and necessary for the new trustees to perform their duties, exercised its s 52 power to vest the two titles in the new trustees; appointment of a litigation guardian was dispensed with as futile given incapacity and the limited, mechanical nature of the relief.

Court Disposition

Vesting orders granted in favour of the newly appointed trustees

Orders

  • Order pursuant to s 52 of the Trustee Act 1956 vesting the estate in fee simple in certificate of title SA61B/914 South Auckland Registry with an area of 1.043 hectares more or less on Lot 1 Deposited Plan South Auckland 77297 in the plaintiffs' names as trustees of the Valerie Moore Family Trust
  • Order pursuant to s 52 of the Trustee Act 1956 vesting the estate in fee simple in certificate of title SA7D/239 South Auckland Registry with an area of 938 square metres more or less on Lot 178 Deposited Plan South Auckland 7609 in the plaintiffs' names as trustees of the Valerie Moore Family Trust