FOY and ANOR v FOY [2018] NZHC 941
Medical evidence established the respondent trustee lacked capacity and the applicants lacked power under the trust deed to remove her; accordingly the court exercised its statutory powers under s 52(1)(b)(i) and s 66 of the Trustee Act 1956 to grant leave, dispense with service and make orders for removal and...
Source-derived case information.
- Citation
- [2018] NZHC 941
- Parties
- Applicant: Michael Bernard Foy; Applicant: Heritage Trustee Company Limited as Trustees of the Foy Family Home Trust; Respondent: Josephine Marie Foy
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 4 May 2018
- Procedural Posture
- Trusts; Application Under Trustee Act 1956 / Interlocutory Application (hearing on Papers)
- Outcome
- Application granted
- Legal Topics
- Removal of Trustee, Vesting Order, Capacity to Manage Property, Dispensing With Service, Trustee Act 1956
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Bernard Foy
Applicant
Heritage Trustee Company Limited as Trustees of the Foy Family Home Trust
Applicant
Josephine Marie Foy
Respondent
Procedural Posture
Trusts; Application Under Trustee Act 1956 / Interlocutory Application (hearing on Papers)
Legal Issues
- 1 Whether a trustee may be removed for lack of capacity
- 2 Whether the court should vest trust property in continuing trustees
- 3 Whether service may be dispensed with and leave granted to commence by originating application
Ratio Decidendi
Medical evidence established the respondent trustee lacked capacity and the applicants lacked power under the trust deed to remove her; accordingly the court exercised its statutory powers under s 52(1)(b)(i) and s 66 of the Trustee Act 1956 to grant leave, dispense with service and make orders for removal and vesting as sought.
Court Disposition
Application granted
Orders
- Orders in terms of paragraph 1(a) and (b) of the Interlocutory Application dated 26 April 2018 (leave to commence by originating application; dispensing with service).
- Orders in terms of paragraph 1(a) and (b) of the Originating Application for a Vesting Order dated 26 April 2018.
Full Case Text
Judgment text and source record
1 paragraphs
FOY and ANOR v FOY [2018] NZHC 941 [4 May 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-786[2018] NZHC 941BETWEEN MICHAEL BERNARD FOY andHERITAGE TRUST COMPANY as Trusteesof the Foy Family Home TrustApplicantsAND JOSEPHINE MARIE FOYRespondentHearing: On papersJudgment: 4 May 2018JUDGMENT OF POWELL JThis judgment was delivered by me on04.05.18 at 4.15 pm, pursuant toRule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors:Denham Bramwell, Manukau City[1] Michael Foy and Heritage Trustee Company Limited as Trustees of the FoyFamily Home Trust have made application for the following orders:(a) Seeking leave to commence the proceedings by way of originatingapplication.(b) Dispensing with service of this proceeding on Mrs Foy.(c) Directing Mrs Foy is removed as a trustee of the Foy Family HomeTrust; and(d) Vesting the Trust property in the continuing Trustees of the Trustnamely Michael Bernard Foy and Heritage Trustee Company Limited.[2] Having considered the application carefully, and in particular reviewing theaffidavits of Mr Foy and Kim Barclay filed in support of the application, the groundsare self-evident. The Foy Family Home Trust was established to hold Mr and MrsFoy's house at Orewa. Since 2012 Mrs Foy has moved into long-term care in a privatehospital suffering from dementia and a range of other conditions. The affidavit ofMs Barclay in particular, the manager of the private hospital where Mrs Foy residesannexed reports from Matthew Sewell (on behalf of Mental Health Services for OlderAdults at the Waitemata DHB) and from the general practitioner attending on theprivate hospital, which confirm that Mrs Foy "does not have capacity to make her owndecisions regarding her personal care and welfare or property". Mrs Foy's conditionis not expected to improve.[3] Given this position it is appropriate for Mrs Foy to be removed as a Trustee.The applicants do not have this power under the Trust Deed for the Foy Family HomeTrust and, as a result, the present application has been made, requiring the orderspursuant to s 52(1)(b)(i) and 66 of the Trustee Act 1956.[4] Taking these matters together I am satisfied that the application should begranted. Orders are to come in terms of paragraph 1(a) and (b) of the InterlocutoryApplication dated 26 April 2018, and paragraph 1(a) and (b) of the OriginatingApplication for a Vesting Order dated 26 April 2018._______________________________Powell J