Gaddum

[2020] NZHC 2688

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV 2020-416-15

[2020] NZHC 2688

UNDER

Part 19 of the High Court Rules and ss 43 and 52 of the Trustee Act 1956

IN THE MATTER OF

an application for an order vesting the interests in property of Estate Joseph

Terrence Dodgshun to the trustees of Estate Joseph Terrence Dodgshun

ANNA CHRISTINE GADDUM and

SUSAN MARY HOLLAND in their capacity as trustees of the estate of Joseph Terrence Dodgshun

Applicants

On the papers
Counsel:	M R Walker for Applicants
Judgment:	13 October 2020

JUDGMENT OF MALLON J

Introduction

[1]                 Anna Gaddum and Susan Holland apply for an order, under s 52 of the Trustee Act 1956, vesting title of an undivided one-half share of property in their names as the trustees of the estate of Joseph Dodgshun.

[2]They also seek procedural orders:

(a)to commence their proceeding for the vesting order by way of a without notice originating application;

RE GADDUM [2020] NZHC 2688 [13 October 2020]

(b)dispensing with service on the beneficiaries of the estate of Joseph Dodgshun; and

(c)determining the application for a vesting order on the papers.

Background

[3]                 Joseph Dodgshun was married to June Dodgshun. Anna Gaddum and Susan Holland are their children. Joseph and June Dodgshun had no other children. Sydney Dodgshun is the brother of Joseph Dodgshun.

[4]                 Joseph Dodgshun died on 25 July 2003.  Probate  of his will was granted  on 8 September 2003. The executors and trustees of the will were June and Sydney Dodgshun. Joseph Dodgshun’s will provided that the residue of his estate was to be held “upon trust for my said wife if she survives me for her own use absolutely, but if she does not, then for such of them my said two daughters as survive me, and of both of them in equal shares absolutely”.

[5]                 The assets of Joseph Dodgshun’s estate are vested in June and Sydney Dodgshun as trustees. The estate’s assets include an undivided one-half share in a property situated at 11 Kingsley Street, Whataupoko, Gisborne. The other undivided half share is in the name of June Dodgshun.

[6]                 June Dodgshun died on 5 November 2019. She left a will dated 21 May 2003. Anna Gaddum and Susan Holland were appointed as executors and trustees under the will. Probate of the will was granted on 5 March 2020. Anna and Susan are the beneficiaries under the will.

[7]                 On 30 December 2019 Dr Teresa Stempa assessed Sydney Dodgshun’s mental capacity. She provided a certificate of mental incapacity dated 4 February 2020. Her certificate stated:

It is my professional opinion that Sydney Yorke Dodgshun lacks the mental capacity to wholly or partially understand the nature of decisions about matters relating to his own personal care and welfare, nor to manage his own or others affairs.

Sydney Yorke Dodgshun’s mental incapacity is due to the naturally occurring aging process and is likely to continue indefinitely.

[8]                 By a deed of appointment dated 30 June 2020, Anna Gaddum and Susan Holland, as executors of June Dodgshun’s estate, were appointed as the new trustees of Joseph Dodgshun’s estate, in the place of June and Sydney Dodgshun. The deed of appointment was entered into pursuant to s 43 of the Trustee Act 1956.

[9]                 As Anna Gaddum and Susan Holland are the current trustees of the estate of Joseph Dodgshun, they seek a vesting order vesting the Kingsley Street property in their names as trustees, so that they can carry out their trustee duties for the benefit of the beneficiaries of Joseph Dodgshun’s estate.

Procedural orders

[10]             I am satisfied that the application for the vesting order can be commenced by way of a without notice originating application. I am also satisfied that there is no useful purpose or reason to serve the originating application on any of the estate’s beneficiaries. I am also satisfied that the originating application can be heard on the papers. I make those orders accordingly.

Vesting order

[11]             The jurisdiction to make a vesting order under s 52(1)(a) of the Trustee Act arises in circumstances “where a trustee of any land or interest therein has been appointed out of court under any statutory or express power”. Anna Gaddum and Susan Holland have been appointed out of court under the statutory power provided by s 43. The need to make the vesting order is consequential on the change of trustees. Pursuant to s 52, I accordingly make an order vesting title of an undivided one-half share of the land contained in record of title GS2C/563 being the property situated at 11 Kingsley Street, Whataupoko, Gisborne, in the names of Anna Christine Gaddum and Susan Mary Holland as trustees of the estate of Joseph Terrence Dodgshun.

Mallon J