GODFREY & MCCORMICK [2017] NZHC 420

GODFREY & MCCORMICK [2017] NZHC 420

An enduring power of attorney does not extend to powers over trust property or enable an attorney to retire a donor as trustee; where a trustee has lost capacity the court may remove the trustee and, under s52 Trustee Act 1956, vest trust property in the remaining trustees and dispense with service when appropriate.

Citation
[2017] 3 NZLR 198
Parties
Applicant; Trustee: John Plimsoll Godfrey; Applicant; Trustee: Andrew Maxwell McCormick; Respondent; Trustee: Fay Rachael Godfrey
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 March 2017
Procedural Posture
Trusts Application Under S52 Trustee Act 1956 / Judgment (on the Papers)
Outcome
Application granted in part: leave to proceed by originating application granted; service dispensed; Fay Rachael Godfrey removed as trustee; property vested in the two remaining trustees.
Legal Topics
Vesting Order Under S52 Trustee Act 1956, Scope of Enduring Power of Attorney, Removal of Trustee for Incapacity, Dispensing With Service
Trusts Property Capacity / Enduring Power of Attorney Civil Procedure Vesting Order Under S52 Trustee Act 1956 Scope of Enduring Power of Attorney Removal of Trustee for Incapacity Dispensing With Service

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Parties

John Plimsoll Godfrey

Applicant; Trustee

Andrew Maxwell McCormick

Applicant; Trustee

Fay Rachael Godfrey

Respondent; Trustee

Procedural Posture

Trusts Application Under S52 Trustee Act 1956 / Judgment (on the Papers)

Legal Issues

  1. 1 Whether an enduring power of attorney empowers an attorney to retire a donor as trustee or otherwise to act in relation to trust property
  2. 2 Whether service on an incapacitated trustee and discretionary beneficiaries can be dispensed with
  3. 3 Whether the Court should exercise its power under s52 Trustee Act 1956 to vest trust property in remaining trustees

Ratio Decidendi

An enduring power of attorney does not extend to powers over trust property or enable an attorney to retire a donor as trustee; where a trustee has lost capacity the court may remove the trustee and, under s52 Trustee Act 1956, vest trust property in the remaining trustees and dispense with service when appropriate.

Court Disposition

Application granted in part: leave to proceed by originating application granted; service dispensed; Fay Rachael Godfrey removed as trustee; property vested in the two remaining trustees.

Orders

  • Leave under r 19.5 of the High Court Rules granted to commence proceedings by originating application
  • Service of the application is dispensed with as to Fay Rachael Godfrey and as to any discretionary beneficiaries