Blakeley v Blakeley

[2020] NZHC 3196

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002322

[2020] NZHC 3196

UNDER

the Trustee Act 1956

IN THE MATTER OF

Jaybee Ebee Trust

BETWEEN

IAIN WILSON BLAKELEY and

RODERICK NORMAN WALLACE MCLEOD

Applicants

AND

ELIZABETH BLAKELEY

Respondent

Hearing:	On the papers
Judgment:	4 December 2020

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 4 December 2020 at 10.30am

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Wackrow Williams & Davies Ltd, Auckland

BLAKELEY v BLAKELEY [2020] NZHC 3196 [4 December 2020]

[1]                  The applicants, Iain Blakeley and Roderick McLeod, have made urgent application seeking an order removing the respondent, Elizabeth Blakeley, from the title to a property situated in 37 Alnwick Street, Warkworth, and vesting the property into their names only. The property is owned by Mr Blakeley, Mr McLeod and Mrs Blakeley as the current trustees of the Jaybee Ebee Trust. Mrs Blakeley is the mother of both Mr Blakeley and Mr McLeod.

[2]                  The application has been brought on an urgent basis, as there is an unconditional sale agreement due for settlement on 7 December 2020.

[3]Mr Blakeley and Mr McLeod have also sought orders as follows:

(a)that the proceeding can be commenced by way of originating application under Part 19 of the High Court Rules;

(b)dispensing with service on their mother – Mrs Blakeley; and

(c)dispensing with the appointment of a litigation guardian on behalf of Mrs Blakeley.

[4]                  The proceedings have been brought without notice and they seek that they should be dealt with on the papers.

[5]                  I am satisfied that it is appropriate to grant leave to bring the proceedings by way of originating application. The applicants are the children of the respondent, and they hold enduring powers of attorney in respect of her property. The applicants and Mrs Blakeley are the registered proprietors of the property in Warkworth, in their capacity as trustees of the Jaybee Ebee Trust. Mrs Blakeley has been assessed as lacking capacity to make decisions in respect of property matters. It is not a contentious matter.

[6]                  Mrs Blakeley does not need to be served with the application. She is unlikely to be able to understand its importance. No other person need be served, because the orders do not change the beneficiaries’ rights or affect obligations owed by the trustees to the beneficiaries.

[7]                  Nor do I consider it necessary to appoint a litigation guardian for Mrs Blakeley. The application affects the interests of the Trust only. It seeks to release Mrs Blakeley from the burden of the obligations she is under as one of the trustees and which she can no longer fulfil. As I explain shortly, I am satisfied that Mrs Blakeley lacks capacity to make decisions in respect of property matters. She is unlikely to be able to give proper instructions to a litigation guardian even if one was appointed.

[8]I approve the draft interlocutory orders filed by the applicants.

[9]                  I am also prepared to make an order removing Mrs Blakeley as a trustee of the Trust and vesting the property in the names of the applicants as ongoing trustees.

[10]               The Trust was established by deed dated 14 August 2002. The initial trustees were Mrs Blakeley and her then husband.  There was a third trustee, Brian Fisher.  Mr McLeod was appointed a trustee by deed dated 1 October 2007. By further deed dated 15 July 2019, Mr Fisher retired as a trustee and Mr Blakeley was appointed as a new trustee. Mrs Blakeley nominated her sons as her attorneys under enduring powers of attorney in respect of property on 8 August 2008.

[11]               Mrs Blakeley has become progressively more frail over the years. She ceased living in the property in November 2019, and she now resides at a rest home in Rodney. Mrs Blakeley and her sons agreed at the time she moved into the rest home, that they would initially keep the property so that family from out of town visiting the area could use it. However, all agreed then that the property be put on the market in the spring of 2020. It was their joint view that that was the best time to take that step.

[12]               As 2020 progressed, Mrs Blakeley’s increasing frailty began to affect her mental capacity. I have been provided with a medical certificate signed by a medical practitioner – Dr Amy MacBeth – confirming that she examined Mrs Blakeley in June 2020. In her opinion, Mrs Blakeley is mentally incapable and is not competent to manage her affairs in relation to property. She expressed the opinion that Mrs Blakeley suffers from significant cognitive impairment.

[13]               Pursuant to s 51 of the Trustee Act 1956, this Court has jurisdiction to remove Mrs Blakeley as a trustee. In my judgment, it is expedient to remove Mrs Blakeley as a trustee as it appears on the available evidence that she is incapable of performing her duties as a trustee.

[14]               Under s 52(1)(b)(i) of the Trustee Act, the Court also has jurisdiction to vest land in such persons as it may direct, where a trustee entitled to, or possessed of any land or interest therein, either solely, or jointly with any other person, is under a disability.

[15]               On the available evidence, it is appropriate to make an order vesting the property in Mr Blakeley and Mr McLeod as the remaining trustees of the Jaybee Ebee Trust. The draft order submitted with the application is approved.

Wylie J