Alberts v Alberts

[2012] NZHC 24

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-001715 [2012] NZHC 24

BETWEEN  JAN ALBERTS (JUNIOR) First Applicant

ANDMARGJE DE WEERT ALBERTS Second Applicant

ANDJAN ALBERTS (SENIOR) Respondent

Judgment:      31 January 2012

JUDGMENT OF HON JUSTICE FRENCH (on the papers)

[1]      The respondent, Mr Alberts Senior, and his son Jan, the first applicant, were the trustees of two trusts, namely the Alberts Family Trust and the J & M Alberts Family Trust.

[2]      Unfortunately, Mr Alberts Senior suffered a stroke, and as a result has lost mental capacity.

[3]      The family’s solicitor, Mr Maciaszek, agreed to replace Mr Alberts Senior as

a trustee of both trusts.

[4]      Mr Alberts Junior had the power to appoint Mr Maciaszek as a new trustee of the Alberts Family Trust, while Mrs Albert had the power to appoint Mr Maciaszek as a trustee of the J & M Alberts Family Trust.

[5]      However,  vesting  orders  were  required  to  vest  property  owned  by  the respective trusts in the new trustees.

ALBERTS V ALBERTS HC CHCH CIV-2010-409-001715 31 January 2012

[6]      That resulted in an application to the Court.

[7]     The application was supported by affidavit evidence, including medical evidence.

[8]      Mr Alberts Junior is the settlor of the Alberts Family Trust.  He is also one of the discretionary beneficiaries, as are his parents and his children.

[9]      The trust owns a property at 47 Wilsons Road, Christchurch.

[10]     At the time of the application, the Wilsons Road property had been sold unconditionally, with settlement imminent.

[11]     I  accordingly  granted  the  application  on  the  papers,  and  made  an  order vesting  the  Wilsons  Road  property  in  Jan  Alberts  Junior  and  Peter  Clifford Maciaszek as the respective continuing and new trustees of the Alberts Family Trust.

[12]     As regards the J & M Alberts Family Trust, the discretionary beneficiaries included other children of Mr Alberts Senior.

[13]     I formed a view that the other children should be given an opportunity to be heard.    I  therefore  directed  that  while  I  would  be  prepared  to  deal  with  the substantive  matter  on  the  papers,  it  was  subject  to  the  other  discretionary beneficiaries of the J & M Alberts Family Trust being served and consenting.  My minute  went  on  to  record  that  if  the  other  discretionary  beneficiaries  had  no objection to a vesting order being made, then a formal memorandum signed by them would suffice for that purpose.

[14]     Since then, all beneficiaries have consented.   The J & M Alberts Family Trust’s  only asset  is  a  residential  property at  376A New  Brighton  Road.   That property was badly damaged in the February 2011 Christchurch earthquake.  It is in the red zone, and it is now necessary to attend to the sale of that property to CERA.

[15]     I am satisfied that the application for a vesting order should be granted, and an order is accordingly made pursuant to s 52 of the Trustee Act 1952 vesting the

property at 376A New Brighton Road, Christchurch, identifier CB44D(962) Canterbury Land Registration District in Jan Alberts (Junior) and Peter Clifford Maciaszek as the respective continuing and new trustees of the J  & M Alberts Family Trust.

Solicitors:

Geddes & Maciaszek, Christchurch