Brunskill

[2018] NZHC 3230

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV 2018-454-114

[2018] NZHC 3230

UNDER

the Trustee Act 1956

AND

IN THE MATTER OF

an application to remove and appoint a Trustee pursuant to s 51 of the Trustee Act 1956

BY

DENISE MARGARET BRUNSKILL

Applicant

On the papers
Judgment:	10 December 2018

JUDGMENT OF MALLON J

[1]                  The applicant, Denise Brunskill, applies to be appointed as trustee of the trust created under the will of Jean Russell, in substitution of the current trustee, Aileen Burr. Denise is the daughter of Aileen and the granddaughter of Jean. The application is made because Aileen, who is in her mid-nineties has lost capacity. Denise is Aileen’s attorney pursuant to an enduring power of attorney for property.

[2]                  Jean died in 1974. She had four children. Under her will Jean’s estate was to be divided equally amongst those children who survived her, subject to a life interest granted to one of her children which is now at an end. Jean appointed two of her children to be executors and trustees under her will. The sole surviving trustee is Aileen.

RE BRUNSKILL [2018] NZHC 3230 [10 December 2018]

[3]                  Jean’s estate is now entirely made up of cash. The estate cannot be distributed because Aileen has lost the capacity to do so. Distribution of Jean’s estate to Jean’s now deceased children’s estates needs to occur before those estates can be wound up.

[4]                  I am satisfied the application should be granted under s 51(1) of the Trustee Act 1956. The evidence filed supports the application. The distributions under Jean’s estate are non-contentious. There is no discretion conferred on the trustee about this. Denise is an appropriate person to replace Aileen, as her daughter and attorney.

[5]                  I also grant the associated without notice application for permission to commence the proceeding by originating application.

Mallon J