Lance v Lance

[2014] NZHC 2725

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV-2014-483-41 [2014] NZHC 2725

UNDER	THE TRUSTEE ACT 1956
IN THE MATTER OF	The Lance Trust
BETWEEN	DIANNE JOAN LANCE Applicant
AND	GRAHAME HUBERT LANCE Defendant

Hearing:	On the papers
Counsel:	G F Kelly for the Applicant
Judgment:	3 November 2014

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4.30 pm on the 3rd day of November 2014.

Solicitors:           Greg Kelly Law, Wellington, for Applicant

LANCE v LANCE [2014] NZHC 2725 [3 November 2014]

[1]      In 1995, Mr G H Lance settled a trust known as the Lance Trust (the Trust). He, along with two others, were the original trustees.  The power of appointing new trustees is vested by the Trust Deed in Mr Lance during his lifetime and in his personal representatives after his death.  Following the death and retirement of the two other trustees, Mr Lance’s wife, the applicant, was appointed a trustee, together with her husband.

[2]      Sadly, Mr Lance suffers from severe dementia and is unable to make any decisions for himself.   In February 2014, the applicant, as the continuing trustee, exercised the power conferred by s 43 of the Trustee Act 1956 (the Act) to appoint new  trustees  to  replace  her  husband.    By  a  Deed  dated  19 February 2014,  she appointed Mr T C Lance and Waverley Trustee Co 2012 Limited as new trustees, along with herself.  There are a number of properties owned by the Trust which need to be transferred into the names of the new trustees.  The present proceedings were commenced, seeking an order under s 52 of the Act vesting the land in the new trustees.

[3]      Mr G H Lance is named as the defendant in these proceedings.  Service on him has been dispensed with.  There are no other persons interested in the outcome and I am in a position to deal with the application on the papers.

[4]      I am satisfied that a vesting order under s 52 is appropriate.   There will accordingly be an order in terms of paragraph (a) of the prayer for relief in the statement of claim.

[5]      An  order  is  also  sought  in  these  proceedings  vesting  the  powers  of appointment, removal and replacement of trustees in paragraph 10 of the Trust Deed in the trustees from time to time of the Trust.  I am not, on the basis of the material before me, satisfied that that order is necessary or appropriate.   The power of appointment  of  new  trustees  in  the  Trust  Deed  is,  as  I  have  noted,  vested  in Mr G H Lance during his lifetime and in his personal representatives after his death. The statutory powers in s 43 have been sufficient to enable Mrs Lance as continuing trustee to appoint the new trustees.  It is not clear to me why, during Mr G H Lance’s lifetime and continued incapacity, the powers in s 43 might not be sufficient to cover

any further need to appoint new trustees.  The person nominated for that purpose in the Trust Deed is not able to act, so that the statutory power in s 43(1) will, on the face of it, be exercisable by the continuing trustees.

[6]      After Mr Lance’s death, the power of appointment of new trustees will vest in his personal representatives.  The order sought would, on its wording, apply not only during the lifetime of Mr G H Lance, but also after his death.  I am not persuaded, on the material presently before me, that such an extensive modification of the power of appointment in the Trust Deed is required.

[7]      Counsel  for  the  applicant  should  submit  a  memorandum  addressing  that point.  I will then rule finally on this second part of the application.

“A D MacKenzie J”