SMITH HC AK CIV-2009-404-006240

SMITH HC AK CIV-2009-404-006240

There was a vacancy in the trusteeship with no living nominated person and no continuing trustees; the personal representative capable of appointing a trustee was incapacitated, therefore the Court properly exercised its power under s51 Trustee Act 1956 to appoint Mr Smith as sole trustee and to validate his past actions as purported trustee.

Citation
openlaw-d434bfcf_2e65_4e69_bc41_3431b4100852.pdf
Parties
Applicant; Proposed Sole Trustee; Solicitor: Peter William Smith; Deceased; Testatrix; Settlor of Trust: Audrey Ellen Barber; Former Executor and Trustee (deceased): Malcolm Barber; Personal Representative of Malcolm Barber (probate Obtained); Incapacitated by Dementia: Beryl Barber; Beneficiary (great Niece): Brianna Griffiths; Mother of Beneficiary; Deponent in Support of Applicant: Ms Griffiths
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 October 2009
Procedural Posture
Trustee Appointment Under Trustee Act 1956 / Judgment (originating Application Heard 19 October 2009; Judgment Delivered 21 October 2009)
Outcome
Application granted
Legal Topics
Appointment of Trustee, Validation of Acts by Purported Trustee, Powers of Personal Representatives, Construction of Will, Trustee Act 1956 S51, Trustee Act 1956 S43(1)
Trusts Probate Estate Administration Appointment of Trustee Validation of Acts by Purported Trustee Powers of Personal Representatives Construction of Will Trustee Act 1956 S51 +1 more

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Parties

Peter William Smith

Applicant; Proposed Sole Trustee; Solicitor

Audrey Ellen Barber

Deceased; Testatrix; Settlor of Trust

Malcolm Barber

Former Executor and Trustee (deceased)

Beryl Barber

Personal Representative of Malcolm Barber (probate Obtained); Incapacitated by Dementia

Brianna Griffiths

Beneficiary (great Niece)

Ms Griffiths

Mother of Beneficiary; Deponent in Support of Applicant

Procedural Posture

Trustee Appointment Under Trustee Act 1956 / Judgment (originating Application Heard 19 October 2009; Judgment Delivered 21 October 2009)

Legal Issues

  1. 1 Whether the court should appoint a new trustee under s51 Trustee Act 1956 given the absence of a living nominated person or capable surviving trustee
  2. 2 Whether past acts by Mr Smith as purported trustee should be validated by the Court
  3. 3 Whether any alternative person (eg personal representative) could validly appoint a trustee

Ratio Decidendi

There was a vacancy in the trusteeship with no living nominated person and no continuing trustees; the personal representative capable of appointing a trustee was incapacitated, therefore the Court properly exercised its power under s51 Trustee Act 1956 to appoint Mr Smith as sole trustee and to validate his past actions as purported trustee.

Court Disposition

Application granted

Orders

  • Peter William Smith of Auckland, solicitor, is appointed as sole trustee of the estate of Audrey Ellen Barber
  • All past actions and/or conduct by Peter William Smith as purported trustee of the estate of Audrey Ellen Barber are deemed to be valid and legal