CLEMENTS v CLEMENTS [2018] NZHC 2657
The court was satisfied on medical evidence that the sole surviving trustee was incapacitated and therefore correctly exercised its statutory powers under s51 Trustee Act 1956 to remove her and appoint new trustees and under s47 to vest trust property in them; service was dispensed with because no other person was...
Source-derived case information.
- Citation
- [2018] NZHC 2657
- Parties
- Plaintiff: Kevin Allen Clements; Defendant: Phyllis Irene Clements as Trustee of the Eric and Phyllis Clements Family Trust
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 15 October 2018
- Procedural Posture
- Trusts Application Under Trustee Act 1956 Removal and Appointment of Trustees and Vesting of Trust Property / Application on the Papers; Final Orders Made
- Outcome
- Application granted; Phyllis removed as trustee; Applicant and YHPJ Trustees (2018) Limited appointed as trustees; trust property vested in new trustees; costs to be met by the Trust.
- Legal Topics
- Removal of Trustee, Appointment of Professional Trustee, Vesting of Trust Property, Capacity of Trustee, Service Dispensation
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kevin Allen Clements
Plaintiff
Phyllis Irene Clements as Trustee of the Eric and Phyllis Clements Family Trust
Defendant
Procedural Posture
Trusts Application Under Trustee Act 1956 Removal and Appointment of Trustees and Vesting of Trust Property / Application on the Papers; Final Orders Made
Legal Issues
- 1 Whether the sole surviving trustee (Phyllis) should be removed due to incapacity
- 2 Whether the court should appoint new trustees including a professional trustee and the applicant
- 3 Whether trust property should be vested in the newly appointed trustees under s47 Trustee Act 1956
Ratio Decidendi
The court was satisfied on medical evidence that the sole surviving trustee was incapacitated and therefore correctly exercised its statutory powers under s51 Trustee Act 1956 to remove her and appoint new trustees and under s47 to vest trust property in them; service was dispensed with because no other person was affected, so final orders were appropriate.
Court Disposition
Application granted; Phyllis removed as trustee; Applicant and YHPJ Trustees (2018) Limited appointed as trustees; trust property vested in new trustees; costs to be met by the Trust.
Orders
- Pursuant to section 51 of the Trustee Act 1956, Phyllis Irene Clements shall cease to be the Trustee of the Eric and Phyllis Clements Family Trust forthwith.
- Simultaneously with part (a) of the Order above, and pursuant to section 51 of the Trustee Act 1956, the Applicant and YHPJ Trustees (2018) Limited be appointed as Trustees of the Eric and Phyllis Clements Family Trust.
Full Case Text
Judgment text and source record
1 paragraphs
CLEMENTS v CLEMENTS [2018] NZHC 2657 [15 October 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2018-488-106[2018] NZHC 2657UNDER the Trustee Act 1956BETWEEN KEVIN ALLEN CLEMENTSPlaintiffAND PHYLLIS IRENE CLEMENTS as a Trsuteeof the ERIC AND PHYLLIS CLEMENTSFAMILY TRUSTDefendantOn the papersCounsel: AG Jackson for PlaintiffJudgment: 15 October 2018JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 15 October 2018 at 4.00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] The Eric and Phyllis Clements Family Trust (the Trust) was settled by PhyllisClements and her husband Eric on 18 April 2002. The trustees of the Trust were thesettlors and Ms Robertson, a financial advisor. Ms Robertson retired as a trustee on10 September 2014. Eric is now deceased. I am satisfied on the evidence ofDr Cunningham that Phyllis is under a disability and not capable of exercising herpowers and duties as sole trustee.[2] The beneficiaries of the Trust include the settlors and their son, Kevin AllenClements. The final beneficiaries are the settlors' grandchildren of which there arecurrently none.[3] Under s 51 of the Trustee Act 1956, pursuant to leave granted on 3 October2018, Kevin has filed an originating application seeking an order replacing Phyllis asthe sole surviving trustee of the Trust by professional trustees, YHPJ Trustees (2018)Limited and himself, and an order vesting the trust property in the new trustees. I amsatisfied that there is no person other than Phyllis affected by the application and Ihave dispensed with service of the proceeding on her.[4] The affidavit evidence is comprehensive and persuasive and I am satisfied that,although there is a possibility that discretionary beneficiaries may be appointed in thefuture, there is no present need to take that prospect into account. It follows that I amprepared to make the final orders necessary to put the Trust's affairs in order, includingappointing the new trustees in Phyllis's place and vesting the trust assets, includingthe property at 1274 State Highway1, RD2, Hikurangi in which Kevin and Phyllis live,in the new trustees.[5] Accordingly, I make the following orders in accordance with counsel's draft:(a) pursuant to section 51 of the Trustee Act 1956, Phyllis Irene Clementsshall cease to be the Trustee of the Eric and Phyllis Clements FamilyTrust forthwith;(b) simultaneously with part (a) of the Order above, and pursuant to section51 of the Trustee Act 1956, the Applicant and YHPJ Trustees (2018)Limited be appointed as Trustees of the Trustee of the Eric and PhyllisClements Family Trust;(c) simultaneously with parts (a) and (b) of the Order above, and pursuantto section 47 of the Trustee Act 1956, all property in the Eric and PhyllisClements Family Trust be vested in the Applicant and YHPJ Trustees(2018) Limited as Trustees of the said Trust; and(d) the cost of the proceeding shall be met by the Trust................................................Toogood J