WILLY BUTLER CORPORATE TRUSTEE LIMITED v BUTLER [2014] NZHC 2928

WILLY BUTLER CORPORATE TRUSTEE LIMITED v BUTLER [2014] NZHC 2928 [24 November 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-002789[2014] NZHC 2928UNDER the Trustee Act 1956IN THE MATTER OF an application under s 52 for a vestingorder of landBETWEEN WILLY BUTLER CORPORATETRUSTEE LIMITEDPlaintiffAND WILLY BUTLER aka ANN BUTLERDefendantHearing: On the PapersAppearances: J Barratt-Boyes for the PlaintiffJudgment: 24 November 2014JUDGMENT OF GILBERT JThis judgment is delivered by me on 24 November 2014At 11.00 am pursuant to r 11.5 of theHigh Court Rules..Registrar / Deputy RegistrarSolicitors:Barratt-Boyes Law Practice, Auckland[1] The plaintiff, now the sole trustee of the Willy Butler No.2 Family Trust, seeks an order that a property owned by the Trust be vested in it. This order is required because the property needs to be sold and the proceeds invested for the benefit of Willy Butler and her daughter, both of whom are now living in a rest home. The title is in the joint names of the plaintiff and Mrs Butler as the former trustees of the Trust. Mrs Butler, now aged 91, is no longer of sound mind, lacks capacity to execute documents and has ceased to be a trustee. A vesting order pursuant to s 52 of the Trustee Act 1956 is therefore sought.[2] Mrs Butler settled the Trust on 5 December 1996. The beneficiaries include Mrs Butler and her daughter who is now 68 and suffers from severe mental health issues.[3] John Barratt-Boyes is the sole director of the plaintiff and has acted for Mrs Butler and the Trust since May 2011. Mrs Butler granted Mr Barratt-Boyes an enduring power of attorney in 2011.[4] Following a fall, Mrs Butler was assessed by a health practitioner at Auckland Hospital as being mentally incapable in July 2012. She was further assessed later that month by a psychiatrist and psychogeriatrician at Bexley Clinic who concluded that she lacked capacity to make decisions relating to her personal property, welfare and care.[5] Unfortunately, Mrs Butler's condition has not improved. A doctor, who hasprovided medical care for Mrs Butler since 2012, certified in October 2014 that Mrs Butler suffers from advanced vascular dementia, a chronic and progressive condition. The doctor considers that Mrs Butler is totally mentally incompetent and is unable to manage her financial affairs and personal welfare.[6] The Trust deed provides that any trustee "who ceases to be sui juris shall immediately ipso facto cease to be a Trustee". Accordingly, Mrs Butler ceased to be a trustee in July 2012.[7] Mrs Butler and her daughter previously lived in a property owned by the Trust at 1/278 Meola Road, Pt Chevalier, Auckland. Title to this property is held in the joint names of Mrs Butler and the plaintiff because they were the trustees of the Trust at the time the property was acquired. Mrs Butler moved to the Everil Orr Village on 24 July 2012. Her daughter moved there the following month. The property now needs to be sold to provide an income for their support.[8] In these circumstances, I am satisfied that it is appropriate for the Court to exercise its power under s 52 of the Trustee Act 1956 and vest the property in the plaintiff. This will enable the property to be sold.[9] Accordingly, I make an order vesting in the plaintiff the property at 1/278 Meola Road, Pt Chevalier, Auckland, being the land comprised and described in certificate of title NA55D/30.________________________M A Gilbert J