Estate of Pointon

[2019] NZHC 30

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2019-463-000008

[2019] NZHC 30

IN THE MATTER OF

an Application pursuant to Sections 51 and 52 of the Trustee Act 1956 for appointment of new Trustees and the vesting of land in Trustees

AND

IN THE MATTER OF

an Application under Section 21 of the Administration Act 1969 to remove an executor

AND

IN THE MATTER OF

an Application by
STEPHEN JOHN POINTON,
GREGORY JAMES POINTON and

NIGEL MARK POINTON, all of Taupō in respect of the POINTON FAMILY TRUST, POINTON PROPERTY TRUST and

ESTATE OF NOELINE MARY POINTON

formerly of Taupō

Hearing:	[On the Papers]
Counsel:	L A Foley for the Applicants
Judgment:	29 January 2019

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 29 January 2019 at 12.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:    Le Pine and Co, Taupō

ESTATE OF N M POINTON [2019] NZHC 30 [29 January 2019]

Introduction

[1]    Mr Albert Pointon is a trustee of the Pointon Family Trust, the Pointon Property Trust, and an executor of the estate of his wife, Noeline Pointon. Mr Albert Pointon has recently had a stroke and as a result has become incapable of acting as either a trustee or administrator.

[2]    Mr Pointon’s three sons, Stephen, Gregory and Nigel, apply for orders removing their father as trustee and executor and appointing themselves as trustees in substitution for their father. Ancillary orders dispensing with service are also sought.

The trusts and the estate

[3]    The application is supported by a comprehensive affidavit of Mr Wickham who is an accountant, and a co-trustee of the three trusts involved. Supporting affidavits from the three applicants are also filed.

[4]    Mr Wickham sets out the background to each of the three trusts.  The  Pointon Family Trust  was  established  by   trust   deed   dated   29 March 1963.   Mr Pointon, who is 87 years old, was an original trustee. Mr Wickham was appointed on 10 May 1982. The trust deed makes provision for Mrs Pointon and the couple’s three sons. The Pointon Family Trust is the registered proprietor of three properties constituting four certificates of title.

[5]    The Pointon Property Trust was established by trust deed dated 16 April 2001. Mr Pointon and Mr Wickham are trustees. The discretionary beneficiaries are the settlor, Mr Pointon and the applicants. The applicants are the final beneficiaries also. The Pointon Property Trust is the registered proprietor of three properties.

[6]    Mr Pointon’s wife, Noeline, passed away on 27 June 1999. The will, which was admitted to probate, appoints Mr Pointon and Mr Wickham as her executors and trustees, and grants Mr Pointon a life interest with the remainder to the applicants as tenants in common in equal shares. The trust created by the estate is the co-owner of five properties. The estate has been fully administered. Nevertheless, a formal order

removing Mr Pointon is sought under s 21 of the Administration Act 1969 out of an abundance of caution.

Decision

[7]    This proceeding is not of a kind that can be commenced by way of originating application as of right under Part 19 of the High Court Rules 2016. However, I am satisfied that, given the nature of the proceeding, it is in the interests of justice that the proceedings be brought by way of originating application. Leave is granted accordingly.

[8]    The applicants are the only beneficiaries of the estate. They have each filed an affidavit in support of the application, as has Mr Wickham, the co-trustee of the trusts. All interested parties are accordingly before the Court, and there is little point in directing service on the beneficiaries in these circumstances. An order dispensing with service is made accordingly.

[9]    As to the appointment of the applicants as trustees in substitution for their father, I am satisfied that Mr Pointon is no longer capable of acting due to his stroke. That is substantiated by medical evidence annexed to the affidavit of Mr Wickham. In those circumstances, I am satisfied that Mr Pointon should be removed as trustee and administrator of the trusts and estate, and it is expedient to appoint new trustees in substitution for Mr Pointon. The appointment of new trustees cannot occur without a court order. An order vesting the properties in the new trustees is necessary to give effect to the new appointments and allow the trusts to be administered.

Orders

[10]   I grant the without notice application, and make orders in the terms set out in the draft orders annexed to the memorandum of counsel dated 24 January 2019.

Edwards J