Joslin v O'Connor [2018] NZHC 76

Joslin v O'Connor [2018] NZHC 76

Given the respondent's certified and ongoing mental incapacity and her proper removal as trustee under s 43 Trustee Act 1956, the Court had jurisdiction under s 52 to make a vesting order transferring the trust land into the names of the continuing trustees; no litigation guardian was required in the absence of opposition and with beneficiaries served and consenting.

Citation
[2018] NZHC 76
Parties
Applicant/trustee: Michael Patrick Joslin; Applicant/trustee: Victoria Ann Joselin; Respondent: Kathleen Mae O'Connor
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 October 2018
Procedural Posture
Application for Vesting Orders Under Trustee Act 1956 / Judgment on the Papers (decision)
Outcome
Application granted
Legal Topics
Vesting Orders, Removal of Trustee, Mental Incapacity, Trust Administration, Sale of Trust Property
Trusts Property Law Equity Capacity Law Vesting Orders Removal of Trustee Mental Incapacity Trust Administration +1 more

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Parties

Michael Patrick Joslin

Applicant/trustee

Victoria Ann Joselin

Applicant/trustee

Kathleen Mae O'Connor

Respondent

Procedural Posture

Application for Vesting Orders Under Trustee Act 1956 / Judgment on the Papers (decision)

Legal Issues

  1. 1 Whether the court should exercise jurisdiction under s 52 Trustee Act 1956 to vest trust land in continuing trustees where a co‑trustee is mentally incapacitated and removed under s 43
  2. 2 Whether a litigation guardian is required to represent the incapacitated former trustee
  3. 3 Whether service on and consent of discretionary beneficiaries is sufficient to proceed without opposition

Ratio Decidendi

Given the respondent's certified and ongoing mental incapacity and her proper removal as trustee under s 43 Trustee Act 1956, the Court had jurisdiction under s 52 to make a vesting order transferring the trust land into the names of the continuing trustees; no litigation guardian was required in the absence of opposition and with beneficiaries served and consenting.

Court Disposition

Application granted

Orders

  • Vesting order: the Property is vested in Michael Patrick Joslin and Victoria Ann Joselin as continuing trustees of the Slainte Trust
  • Registrar to update the certificate of title to reflect vesting in the continuing trustees; consequential and ancillary orders in terms of paragraphs 1(b) and 1(c) of the originating application dated 17 September 2018