New Zealand Case Law: Decisions & Judgments

Topic

Incapacity of trustee

Legal area

Court

28 Aug 2020

EWINS v EWINS [2020] NZHC 2199

Citation

[2020] NZHC 2199
Court

High Court

Because the evidence established that Mr Ewins suffers significant dementia and lacks capacity to execute documents or manage trust affairs, and the other trustees and beneficiaries supported the application, the court granted leave to proceed by originating application, dispensed with service, removed Mr Ewins as trustee, appointed two replacement trustees and vested the trust assets in them to ensure the trust can continue to operate for the beneficiaries in accordance with the Deed of Trust dated 10 July 1998.
23 Jun 2020

CORMACK v CORMACK [2020] NZHC 1422

Citation

[2020] NZHC 1422
Court

High Court

The Court was satisfied on the evidence, including a medical certificate confirming dementia and affidavits from trustees and beneficiaries, that it was appropriate to remove Derek and Lorna as trustees under s 51 and to vest the specified property interests under s 52; accordingly the procedural and substantive relief sought was granted.
13 Feb 2020

MOORE v MCCLUSKEY [2020] NZHC 164

Citation

[2020] NZHC 164
Court

High Court

The Court was satisfied on the evidence that the respondent is incapacitated and, because an enduring power of attorney does not operate to exercise a person's trusteeship, a vesting order under s 52 was appropriate to remove the respondent's name from title and vest the share in the applicants.
12 Mar 2019

CRAIG v CRAIG [2019] NZHC 414 .

Citation

(2019) 4 NZTR 29
Court

High Court

The High Court will remove a trustee who is incapacitated and may appoint replacement trustees under s51 and vest trust property in them under s52; procedural safeguards may be adjusted where appropriate but orders dealing with parties without service must be accompanied by the required r7.23 certificate before sealing.
19 Nov 2018

RE EARL LUKE TIPENE [2018] NZHC 2996

Citation

[2018] NZHC 2996
Court

High Court

Where a trustee was shown to be mentally incapacitated, beneficiaries consented, and the sole remaining capable trustee sought to retire the incapacitated trustee and appoint a replacement, the Court has jurisdiction under ss 52 and 64 of the Trustee Act 1956 to remove the incapacitated trustee, appoint a new trustee and make vesting orders to enable disposition of the trust's sole asset.
10 Aug 2018

HUTCHINGS v MORRIS [2018] NZHC 2031

Citation

[2018] NZHC 2031
Court

High Court

On the evidence the court was satisfied that Morris is incapable of performing trustee duties and Hutchings is unable to continue; beneficiaries consented; it was therefore expedient to remove the existing trustees, appoint the proposed trustees and vest the trust property in them, and the court granted the application.
28 Jun 2018

DANIELS v DANIELS [2018] NZHC 1578

Citation

[2018] NZHC 1578
Court

High Court

Given uncontradicted medical evidence that the trustee was permanently incapacitated, the valid exercise of the trust deed power to remove him, and consent of beneficiaries, the Court properly exercised its power under s 52 Trustee Act 1956 to vest the trust property in the continuing trustees to enable administration and sale.
6 Jun 2018

TOKAHERE & TOKAHERE TRUSTEE COMPANY LTD [2018] NZHC 1325

Citation

[2018] NZHC 1325
Court

High Court

Mr Tokahere was found incapacitated; removal under s43(1)(f) and appointment of the corporate trustee were effective; given the mortgage arrears and urgent need to refinance to avoid mortgagee sale, the Court exercised its discretion under s52 to grant the vesting order without full prior notice, subject to post-judgment notification to discretionary beneficiaries.
7 Dec 2017

REED & ORS v REED [2017] NZHC 3030

Citation

[2017] NZHC 3030
Court

High Court

Because the respondent was incapacitated, no longer a trustee, unable to participate, and the beneficiaries’ positions would be unchanged, the Court properly exercised its discretion under s52 Trustee Act 1956 to grant leave, dispense with service and representation, and vest the specified land in the replacement trustees.
19 Sept 2016

HAN v HAN [2016] NZHC 2221

Citation

[2016] NZHC 2221
Court

High Court

Medical evidence established the trustee's incapacity; proposed replacements consented and there was no opposition; under ss 51 and 52 of the Trustee Act 1956 it was expedient to remove the incapacitated trustee, appoint his two sons as replacement trustees, and vest his interest in the specified land in the new trustees.