Brent v Brent

[2020] NZHC 2375

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2020-488-69

[2020] NZHC 2375

UNDER

Part 19 High Court Rules

IN THE MATTER

of an application for vesting orders under s 52 of the Trustee Act 1956 and for orders under the inherent jurisdiction of the High Court

BETWEEN

KENYON LISLE BRENT and WENDY

RAEBURN JECENTHO as trustees of the KEN & JOY BRENT FAMILY TRUST
Applicants

AND

MARGARET JOY BRENT as trustee of the KEN & JOY BRENT FAMILY TRUST

Respondent

Judgment:

(On the papers)

11 September 2020

JUDGMENT OF BREWER J

Solicitors:

Vicki Ammundsen Trust Law Ltd (Auckland) for Applicants

BRENT and JECENTHO as trustees of the KEN & JOY BRENT FAMILY TRUST v BRENT as trustee of the KEN & JOY BRENT FAMILY TRUST [2020] NZHC 2375 [11 September 2020]

Introduction

[1]        The applicants apply without notice for leave to commence a proceeding by originating application.

[2]        The applicants are trustees of the Ken & Joy Brent Family Trust which was established by deed on 7 December 2009. They seek to remove the respondent as a trustee of the Trust, to vest a residential property belonging to the Trust in their names and to vest the power of appointment under the Trust in Mr Kenyon Brent alone.

Background

[3]        Mr KL Brent and Mrs MJ Brent are married. They are the settlors of the Trust. They are both now resident in a residential care home in Kaitaia.  Unfortunately,  Mrs MJ Brent has dementia and is no longer capable of managing her own affairs. The  Enduring  Power  of  Attorney  (Property)  granted  by  Mrs  MJ  Brent   to   Mrs WR Jecentho on 12 May 2010 has been activated.

[4]        The applicants and the respondent are registered as the proprietors of a residential property in Kaitaia. They are proprietors in their capacities as trustees of the Trust. I infer the property was the home of Mr KL Brent and Mrs MJ Brent before they moved into residential care.

[5]        The applicants have entered into an agreement to sell the property. The agreement is dated 11 August 2020 and the settlement date is 18 September 2020 “or such other date as agreed”. The agreement was signed by the applicants as trustees and by Mrs WR Jecentho as the attorney of Mrs MJ Brent. Neither of the applicants realised that powers of attorney do not extend to the exercise of powers conferred on trust. However, the applicants have since ratified execution of the agreement to sell the property and so it is binding on the Trust.

[6]        The Trust Deed provides that the discretionary beneficiaries are (pertinently) Mr KL Brent and Mrs MJ Brent, their children and their grandchildren. Each of the children (including Mrs WR Jecentho) have consented in writing to the applications.

I am told there are nine grandchildren and the applicants submit that service on those grandchildren is unnecessary.

[7]        Funds released from the sale of the real property are intended by the applicants to be used for the care of Mr KL Brent and Mrs MJ Brent.

Discussion

[8]        The  matters  I  have  set  out  above  are  confirmed  by  the  affidavit  of  Mrs WR Jecentho sworn on 1 September 2020. I rely upon it.

[9]        It is clear to me that the applications should be granted. In substance, all that is asked for is an order removing Mrs MJ Brent as a trustee of the Trust so that the two remaining trustees can properly exercise their trusts. The Trust Deed permits there to be two trustees.

[10]      The other orders sought are merely consequential on the first. There is no change to the rights of any of the discretionary beneficiaries and none can be prejudiced by the removal of Mrs MJ Brent as a trustee.

[11]      I am satisfied also, by the unanimous agreement of the children of Mr KL Brent and Mrs MJ Brent, that there is no point in serving the grandchildren.

Decision

[12]      I grant the without notice application for leave to commence the proceeding by originating application.

[13]I dispense with service on the respondent and on any other party.

[14]      I grant the originating application for orders and make the orders set out in paragraph 1 of the application. These orders may be sealed.

Brewer J