Kilmister v Kilmister

[2020] NZHC 989

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2020-454-22

[2020] NZHC 989

IN THE MATTER OF

an application for Vesting Orders pursuant to section 52 of the Trustee Act 1956

BETWEEN

COLLEEN MAY KILMISTER AND GRAEME JOHN KILMISTER

Plaintiffs/Applicants

AND

FREDERICK JAMES ALEXANDER KILMISTER

Defendant

Hearing:	On the papers
Appearances:	K B Campbell for the Plaintiffs/Applicants
Judgment:	13 May 2020

JUDGMENT OF COOKE J

[1]By application dated 23 March 2020 the applicants seek orders:

(a)Permitting these proceedings being commenced by way of originating application without service or notice to any other person, and permitting the application to be determined on the papers.

(b)That certain properties be vested in the names of the applicants pursuant to s 52 of the Trustee Act 1956.

[2]        The applications are supported by a joint affidavit from the applicants sworn 23 March 2020 and a memorandum of counsel.

KILMISTER v KILMISTER [2020] NZHC 989 [13 May 2020]

[3]        The orders and directions referred to in paragraph [1](a) above are routinely given in matters of this kind, and are in order here.

[4]        The defendant is a joint trustee with the applicants of the Kilmister Family Trust which owns the properties in question. The application proceeds on the basis that the defendant, who is the husband and father of the applicants, is mentally incapable as a result of age related dementia, and that he cannot discharge his duty as a trustee of the Trust. Whilst the defendant has executed an enduring powers of attorney, the orthodox view is that this cannot be exercised in respect of a person’s role as a trustee of a Trust.1 Accordingly vesting orders are necessary to affect a transfer of the title to the applicants as the remaining trustees able to act.

[5]        Applications of the present kind are frequently sought, and usually granted on the papers. In the present case I have hesitated in one respect. The evidence of the defendant’s capacity is sparse. The affidavit attaches forms completed by a medical practitioner to the effect that the defendant lacks capacity. But it is not unusual for family members to have disagreements about property, and to potentially take advantage of those in a more vulnerable state. The Court needs to be conscious of such possibilities. An application of the present kind should usually be supported by more complete evidence than a copy of a standard form completed by a medical practitioner — for example in the form of an affidavit from a qualified medical practitioner on the issue.

[6]        Notwithstanding that concern I am prepared to grant the application in the present case given:

(a)the existence of the form completed by a medical practitioner;

(b)the evidence from the joint applicants that the defendant lacks capacity;

1      Godfrey v McCormick [2017] NZHC 420, [2017] 3 NZLR 198; Locker v Browning [2018] NZHC 1127 at [12]–[14].

(c)the evidence concerning the beneficiaries of the Trust supported by the signed consent provided by the remaining discretionary beneficiary; and

(d)the certification by counsel for the applicants that the application contains all relevant information, including any information relating to any opposition relating to the orders.

[7]        For these reasons I make the orders that the following properties be registered solely in the names of Colleen May Kilmister and Graeme John Kilmister:

(a)all the land situate at 56B Seabury Avenue, Foxton Beach being more particularly described as a half share of the land comprised and described in Identifier 572830 Wellington Registry;

(b)all of the land situate at Foxton being more particularly described as all of the land comprised and described in Identifier WN22C/468; and

(c)the land situate at Shannon being more particularly described as all the land comprised and described in Identifier 41395 Wellington Registry.

Cooke J

Solicitors:
Cooper Campbell Law, Levin for the Plaintiffs/Applicants