Fynn v Fynn - [2014] NZHC 2210

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-000347 [2014] NZHC 2210

UNDER
Part 19 of the High Court Rules and the

Trustee Act 1956

IN THE MATTER OF

an application for a vesting order in respect of land

BETWEEN

BARRY JOHN FYNN, BRUCE ELLETT PAGE and

REDOUBT TRUSTEES XIV LIMITED Applicants

AND

AILEEN ELSIE FYNN Respondent

Hearing:
11 September 2014

[On the Papers]

Counsel:

C W Grenfell for the Applicants

Judgment:

11 September 2014

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 11 September 2014 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Edmonds Judd, Te Awamutu

FYNN and ORS v FYNN [2014] NZHC 2210 [11 September 2014]

[1] The applicants, Barry John Fynn (Mr Fynn) and Bruce Ellett Page, are trustees of a testamentary trust (“the trust”) of the estate of John Fynn (“the estate”) pursuant to a will dated 1 May 1984 (“the will”). The other applicant, Redoubt Trustees XIV Limited, is a professional trustee company that was appointed as a trustee of the trust by a deed dated 14 August 2014 (“the deed”).

[2] The respondent is the wife of the deceased, John Fynn. She was one of the trustees named in the will. She was removed as a trustee of the trust pursuant to the deed.

[3] In relation to this proceeding, the Court already has made the following orders: (a) granting the applicants leave without notice to bring this proceeding under Part 19 of the High Court Rules (“the application”); and (b) granting an order dispensing with service of the application on the respondent.

[4] The respondent is over 90 years old and she is now affected by senile dementia of the Alzheimer’s type. From on or about 15 August 2013, she has been residing at the Hilda Ross retirement home where she receives specialist care.

[5] The applicants have provided the Court with an affidavit of Dr Julian O’Sullivan, which sets out in full the diagnosis of dementia of an Alzheimer’s type, the symptoms from which the respondent suffers, and her lack of capacity to: (a) instruct a professional such as a lawyer or an accountant; (b) to understand advice given to make prudent investment decisions such as the sale or purchase of real estate; and (c) to give consideration to the needs of the beneficiaries of the trust. Dr O’Sullivan is of the view that the respondent could be at high risk of being the subject of undue influence, as she is physically capable of signing a document, but she does not have the capacity to fully understand the meaning of the documents.

[6] Dr O’Sullivan deposes that the symptoms of the respondent are such that he does not believe she would be able to instruct a lawyer to act for her in legal proceedings; nor does he believe that she would be able to participate in the

for her if she is asked to participate.

[7] Dr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fynn v Fynn

Details

AGLC: Fynn v Fynn [2014] NZHC 2210
Case: [2014] NZHC 2210
Decision Date: 11 September 2014

CaseChat Overview and Summary

The case of Fynn and Others v Fynn involved Barry John Fynn, Bruce Ellett Page, and Redoubt Trustees XIV Limited as applicants, seeking a vesting order in relation to certain land. Aileen Elsie Fynn, the respondent and wife of the deceased, John Fynn, opposed the application. The applicants sought to vest the respondent's legal interest in a 17/20 share of the land in Redoubt Trustees XIV Limited, which would facilitate the sale of the land. The respondents were trustees of a testamentary trust under a will dated 1 May 1984. Aileen Elsie Fynn, the wife of the deceased, was originally named as a trustee in the will but was removed pursuant to a deed dated 14 August 2014. Aileen Elsie Fynn suffered from senile dementia of the Alzheimer's type, and her capacity to act as a trustee was in question. The applicants provided evidence, including affidavits from medical professionals, demonstrating the respondent's lack of capacity to manage her legal interests and her vulnerability to undue influence.

The primary legal issue before the court was whether the applicants were entitled to the vesting order that would enable them to sell the land. The court needed to consider whether the evidence supported the removal of Aileen Elsie Fynn's name from the certificate of title and its replacement with that of Redoubt Trustees XIV Limited. The court also had to determine whether the respondents' removal as trustees and the vesting order were justified given the respondent's incapacity. The court relied on previous case law, specifically Kohn v Kohn, where a similar vesting order was granted on the papers. The court found that the evidence presented was sufficient to support the applicants' request for the vesting order. Given the respondent's diagnosed dementia and her inability to manage her legal interests, the court determined that the vesting order was appropriate. The court granted the order, allowing the applicants to proceed with the sale of the land.

In conclusion, the court made an order under section 52(1)(b)(i) of the Trustee Act 1956, vesting the 17/20 share of the land in Barry John Fynn, Bruce Ellett Page, and Redoubt Trustees XIV Limited. This decision facilitated the sale of the land and addressed the applicants' need to vest the respondent's legal interest in the land with Redoubt Trustees XIV Limited. The court's ruling aligned with the evidence provided and the legal precedents set in similar cases. The final order ensured that the sale could proceed without further delay.

Orders