LANCE v LANCE [2014] NZHC 2725

LANCE v LANCE [2014] NZHC 2725

A s 52 vesting order was appropriate to vest the trust land in the new trustees appointed by the continuing trustee under s 43; however the Court would not, on the material before it, make a broad modification of the Trust Deed to vest paragraph 10 powers in the trustees since s 43 and the post‑death vesting in...

Source-derived case information.

Citation
[2014] NZHC 2725
Parties
Applicant: Dianne Joan Lance; Defendant: Grahame Hubert Lance
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 November 2014
Procedural Posture
Application Under Trustee Act 1956 for Vesting Order / Judgment on the Papers (application)
Outcome
Vesting order under s 52 granted; application to modify appointment provisions in paragraph 10 of the Trust Deed not granted on present materials and reserved for further consideration on memorandum from counsel
Legal Topics
Appointment of Trustees, Vesting Order Under S 52 Trustee Act 1956, Statutory Appointment Power Under S 43 Trustee Act 1956, Incapacity of Settlor
Trusts Property Law Equity Appointment of Trustees Vesting Order Under S 52 Trustee Act 1956 Statutory Appointment Power Under S 43 Trustee Act 1956 Incapacity of Settlor

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Parties

Dianne Joan Lance

Applicant

Grahame Hubert Lance

Defendant

Procedural Posture

Application Under Trustee Act 1956 for Vesting Order / Judgment on the Papers (application)

Legal Issues

  1. 1 Whether a vesting order under s 52 Trustee Act 1956 should be made to vest trust land in trustees appointed by the continuing trustee under s 43
  2. 2 Whether the Court should modify the Trust Deed to vest the powers of appointment, removal and replacement of trustees in the trustees from time to time (paragraph 10)
  3. 3 Whether statutory powers in s 43 are sufficient during the settlor's incapacity and whether a broader modification of the Trust Deed is necessary or appropriate

Ratio Decidendi

A s 52 vesting order was appropriate to vest the trust land in the new trustees appointed by the continuing trustee under s 43; however the Court would not, on the material before it, make a broad modification of the Trust Deed to vest paragraph 10 powers in the trustees since s 43 and the post‑death vesting in personal representatives render the extensive modification unnecessary; final determination on modification reserved pending a memorandum from counsel.

Court Disposition

Vesting order under s 52 granted; application to modify appointment provisions in paragraph 10 of the Trust Deed not granted on present materials and reserved for further consideration on memorandum from counsel

Orders

  • Order pursuant to s 52 Trustee Act 1956 vesting the trust land in T C Lance, Waverley Trustee Co 2012 Limited and Dianne Joan Lance (in terms of paragraph (a) of the statement of claim)
  • No order made at this stage to vest or modify the powers of appointment, removal and replacement of trustees in paragraph 10 of the Trust Deed; Court not satisfied such extensive modification is necessary or appropriate on present material; matter reserved and counsel for applicant to file a memorandum addressing...