Re M I Clifford Trust No 2 [2017] NZHC 1888

Re M I Clifford Trust No 2 [2017] NZHC 1888

The Court exercised its inherent jurisdiction to remove a trustee who lacks capacity and, relying on s52 Trustee Act 1956, made vesting orders to transfer legal title of trust land into the names of the remaining trustees; dispensing with service and hearing on the papers was justified because the orders were routine and did not affect beneficiaries' entitlements; the welfare of beneficiaries governed the exercise of the Court's power.

Citation
[2017] NZHC 1888
Parties
Applicant and Trustee: Anne Cowlishaw Rutherford; Applicant and Trustee: Deidre Cowlishaw Wood; Trustee Under Disability (removed): Mary Ida Clifford
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 August 2017
Procedural Posture
Trust Application (vesting Under Trustee Act 1956) / Hearing on the Papers; Application for Removal of Trustee and Vesting Orders
Outcome
Application granted: service dispensed; Mary Ida Clifford removed as trustee; multiple trust properties vested in Anne Cowlishaw Rutherford and Deidre Cowlishaw Wood; leave reserved for further directions.
Legal Topics
Trustee Removal, Vesting Order Under S52 Trustee Act, Disability of Trustee, Dispensing With Service, High Court Rules Part 19
Trusts Property Law Equity Civil Procedure Elder Law Trustee Removal Vesting Order Under S52 Trustee Act Disability of Trustee +2 more

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Parties

Anne Cowlishaw Rutherford

Applicant and Trustee

Deidre Cowlishaw Wood

Applicant and Trustee

Mary Ida Clifford

Trustee Under Disability (removed)

Procedural Posture

Trust Application (vesting Under Trustee Act 1956) / Hearing on the Papers; Application for Removal of Trustee and Vesting Orders

Legal Issues

  1. 1 Whether a trustee lacking mental capacity can be removed by the Court
  2. 2 Whether land held by a trustee under disability can be vested in co-trustees under s52 Trustee Act 1956
  3. 3 Whether service on beneficiaries can be dispensed with and application heard without notice

Ratio Decidendi

The Court exercised its inherent jurisdiction to remove a trustee who lacks capacity and, relying on s52 Trustee Act 1956, made vesting orders to transfer legal title of trust land into the names of the remaining trustees; dispensing with service and hearing on the papers was justified because the orders were routine and did not affect beneficiaries' entitlements; the welfare of beneficiaries governed the exercise of the Court's power.

Court Disposition

Application granted: service dispensed; Mary Ida Clifford removed as trustee; multiple trust properties vested in Anne Cowlishaw Rutherford and Deidre Cowlishaw Wood; leave reserved for further directions.

Orders

  • Application to proceed under Part 19 High Court Rules
  • Service of the application dispensed with