FRASER v Carey [2018] NZHC 13

FRASER v Carey [2018] NZHC 13

Because the respondent was validly removed as trustee and certified mentally incapable, and the applicants were validly appointed, the Court had jurisdiction under s52 Trustee Act 1956 to vest the trust property in the new trustees and to dispense with service and appointment of a litigation guardian; allowing amendment of the 'no variation' clause was justified to enable trust administration while protecting beneficiaries.

Citation
[2018] NZHC 13
Parties
Applicant/trustee: Penelope Anne Fraser; Applicant/trustee: Deanne Carol Taylor; Respondent/settlor/former Trustee/beneficiary: Nancy Olga Carey
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 October 2018
Procedural Posture
Application for Vesting Order and Trust Administration Directions Under Trustee Act 1956 / Interlocutory Application on the Papers Without Notice (originating Application)
Outcome
Interlocutory orders granted as sought
Legal Topics
Vesting Order Under S52 Trustee Act 1956, Trustee Removal and Appointment Under S43, Service and Litigation Guardian Directions, Variation of Trust Deed, Mental Incapacity and Representation
Trusts Property Law Equity Civil Procedure Vesting Order Under S52 Trustee Act 1956 Trustee Removal and Appointment Under S43 Service and Litigation Guardian Directions Variation of Trust Deed +1 more

Case Brief

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Parties

Penelope Anne Fraser

Applicant/trustee

Deanne Carol Taylor

Applicant/trustee

Nancy Olga Carey

Respondent/settlor/former Trustee/beneficiary

Procedural Posture

Application for Vesting Order and Trust Administration Directions Under Trustee Act 1956 / Interlocutory Application on the Papers Without Notice (originating Application)

Legal Issues

  1. 1 Whether the Court has jurisdiction to vest trust land in newly appointed trustees under s52 Trustee Act 1956
  2. 2 Whether the respondent is under disability such that a vesting order and dispensing with service are appropriate
  3. 3 Whether the respondent was validly removed and the applicants validly appointed under s43(1)(j) Trustee Act 1956

Ratio Decidendi

Because the respondent was validly removed as trustee and certified mentally incapable, and the applicants were validly appointed, the Court had jurisdiction under s52 Trustee Act 1956 to vest the trust property in the new trustees and to dispense with service and appointment of a litigation guardian; allowing amendment of the 'no variation' clause was justified to enable trust administration while protecting beneficiaries.

Court Disposition

Interlocutory orders granted as sought

Orders

  • Proceedings permitted to be commenced by originating application
  • Service on the respondent and any other party dispensed with