RE THE DUFFY FAMILY TRUST [2017] NZHC 2025

RE THE DUFFY FAMILY TRUST [2017] NZHC 2025

Given the death of one trustee and the established medical incapacity of a second trustee, the Court had power under the Trustee Act and its inherent jurisdiction to remove the incapacitated trustee, appoint a professional replacement trustee, vest the trust property in the continuing and replacement trustees, and...

Source-derived case information.

Citation
[2017] NZHC 2025
Parties
Applicant: Gary John Clarke; Current Trustee: Mary Hay Duffy
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 August 2017
Procedural Posture
Trusts Trustee Act 1956 Application / Determination on the Papers; Final Judgment
Outcome
Application granted; orders made removing incapacitated trustee, appointing replacement trustee, vesting specified trust properties, amending trust deed to add indemnity clause, and costs to be met from trust resources.
Legal Topics
Removal of Trustee, Appointment of Trustee, Vesting of Trust Property, Amendment of Trust Deed, Trustee Indemnity, Incapacity
Trusts Equity Property Law Civil Procedure Removal of Trustee Appointment of Trustee Vesting of Trust Property Amendment of Trust Deed +2 more

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Parties

Gary John Clarke

Applicant

Mary Hay Duffy

Current Trustee

Procedural Posture

Trusts Trustee Act 1956 Application / Determination on the Papers; Final Judgment

Legal Issues

  1. 1 Whether the Court should remove an incapacitated trustee
  2. 2 Whether a replacement trustee may be validly appointed under s43 Trustee Act 1956
  3. 3 Whether trust property should be vested in the continuing and replacement trustees under s52(1)(b)(i) Trustee Act 1956

Ratio Decidendi

Given the death of one trustee and the established medical incapacity of a second trustee, the Court had power under the Trustee Act and its inherent jurisdiction to remove the incapacitated trustee, appoint a professional replacement trustee, vest the trust property in the continuing and replacement trustees, and amend the trust deed to add the proposed indemnity clause to enable proper ongoing administration of the trust.

Court Disposition

Application granted; orders made removing incapacitated trustee, appointing replacement trustee, vesting specified trust properties, amending trust deed to add indemnity clause, and costs to be met from trust resources.

Orders

  • Remove Mary Hay Duffy as Trustee of the Duffy Family Trust.
  • Appoint Aoraki Trustees Co (2013) Limited as replacement Trustee of the Duffy Family Trust, to act jointly with Gary John Clarke.