MOORE v MCCLUSKEY [2020] NZHC 164

MOORE v MCCLUSKEY [2020] NZHC 164

The Court was satisfied on the evidence that the respondent is incapacitated and, because an enduring power of attorney does not operate to exercise a person's trusteeship, a vesting order under s 52 was appropriate to remove the respondent's name from title and vest the share in the applicants.

Citation
[2020] NZHC 164
Parties
Applicant and Trustee: Jocelyn Annette Moore; Applicant and Trustee: Ian Francis Wedderburn; Respondent and Former Trustee: Cynthia Margaret McCluskey
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 February 2020
Procedural Posture
Application Under the Trustee Act 1956 for Vesting Order / Determination on the Papers (originating Application)
Outcome
Application granted
Legal Topics
Vesting Orders, Removal of Trustee, Incapacity of Trustee, Enduring Power of Attorney
Trusts Equity Property Law Capacity Civil Procedure Vesting Orders Removal of Trustee Incapacity of Trustee +1 more

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Parties

Jocelyn Annette Moore

Applicant and Trustee

Ian Francis Wedderburn

Applicant and Trustee

Cynthia Margaret McCluskey

Respondent and Former Trustee

Procedural Posture

Application Under the Trustee Act 1956 for Vesting Order / Determination on the Papers (originating Application)

Legal Issues

  1. 1 Whether the respondent is incapacitated as a trustee
  2. 2 Whether an enduring power of attorney can be used to act in place of a trustee
  3. 3 Whether the Court should vest legal title under s 52 Trustee Act 1956

Ratio Decidendi

The Court was satisfied on the evidence that the respondent is incapacitated and, because an enduring power of attorney does not operate to exercise a person's trusteeship, a vesting order under s 52 was appropriate to remove the respondent's name from title and vest the share in the applicants.

Court Disposition

Application granted

Orders

  • In respect of the three-quarter share of the property in Featherston contained in record of title WN15A/260: Cynthia Margaret McCluskey is removed from the title
  • The title of that property is vested in the joint names of Jocelyn Annette Moore and Ian Francis Wedderburn