BEHRENT v BEHRENT [2019] NZHC 2132

BEHRENT v BEHRENT [2019] NZHC 2132

On the medical evidence that the respondent trustee lacks capacity the Court, exercising its inherent supervisory jurisdiction and relying on s52 of the Trustee Act 1956, will remove the incapacitated trustee and vest the trust property in the remaining trustees; dispensing with service and not appointing a litigation guardian is appropriate where service would serve no purpose and beneficiaries are not prejudiced.

Citation
[2019] NZHC 2132
Parties
Applicant (trustee): Leo Seddon Desmond Behrent; Applicant (trustee): Murray Richard Behrent; Respondent (trustee): Shirley Grace Behrent
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 August 2019
Procedural Posture
Application Under S52 Trustee Act 1956 (vesting Order) / Determined on the Papers; Judgment Delivered 30 August 2019
Outcome
Leave granted to commence by originating application; service on respondent and beneficiaries dispensed with; no litigation guardian appointed; respondent removed as trustee; property vested in remaining trustees; no order as to costs.
Legal Topics
Vesting Order Under S52 Trustee Act, Removal of Trustee for Incapacity, Dispensing With Service, Litigation Guardian, Inherent Supervisory Jurisdiction of the Court
Trusts Trusteeship Property Law Capacity Civil Procedure Vesting Order Under S52 Trustee Act Removal of Trustee for Incapacity Dispensing With Service +2 more

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Parties

Leo Seddon Desmond Behrent

Applicant (trustee)

Murray Richard Behrent

Applicant (trustee)

Shirley Grace Behrent

Respondent (trustee)

Procedural Posture

Application Under S52 Trustee Act 1956 (vesting Order) / Determined on the Papers; Judgment Delivered 30 August 2019

Legal Issues

  1. 1 Whether the court should remove a trustee who lacks capacity
  2. 2 Whether the court should make a vesting order under s52 of the Trustee Act 1956
  3. 3 Whether service of proceedings and appointment of a litigation guardian can be dispensed with

Ratio Decidendi

On the medical evidence that the respondent trustee lacks capacity the Court, exercising its inherent supervisory jurisdiction and relying on s52 of the Trustee Act 1956, will remove the incapacitated trustee and vest the trust property in the remaining trustees; dispensing with service and not appointing a litigation guardian is appropriate where service would serve no purpose and beneficiaries are not prejudiced.

Court Disposition

Leave granted to commence by originating application; service on respondent and beneficiaries dispensed with; no litigation guardian appointed; respondent removed as trustee; property vested in remaining trustees; no order as to costs.

Orders

  • Leave granted to commence these proceedings by originating application
  • Service of the application upon Shirley Grace Behrent dispensed with