Marshall v Marshall

[2019] NZHC 1361

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2019-483-14

[2019] NZHC 1361

UNDER

the Trustee Act 1956

IN THE MATTER

of an application for a Vesting Order

BETWEEN

MAUREEN MARSHALL

Applicant

AND

ROBERT RODNEY MARSHALL

Respondent

Hearing:	on the papers
Counsel:	D A Robertson for the Applicant
Judgment:	14 June 2019

JUDGMENT OF CULL J

[1]                  The applicant is a trustee of the Bob & Maureen Marshall Family Trust (the Trust), who seeks leave without notice to commence proceedings by way of originating application and directions as to service, for a vesting order under s 52 of the Trustee Act 1956 (the Act). Her husband, the respondent, was previously a trustee of the Trust, but suffers from senile dementia, lacks mental capacity, and was unable to act as a trustee of the Trust. The respondent was removed as a trustee and was replaced.

[2]                  The current trustees of the Trust now number four, including the applicant. The Trust owns the property at 1 Kawau Place, Otamatea, Whanganui, which the trustees wish to sell.

MARSHALL v MARSHALL [2019] NZHC 1361 [14 June 2019]

[3]                  The trustees now seek a vesting order under s 52(1)(b)(i) of the Act to vest the property in the names of the current trustees of the Trust, so that the property can be transferred.

[4]                  Annexed to the applicant’s affidavit is a health practitioner’s certificate of mental incapacity in respect of the respondent and his enduring power of attorney in relation to property. The medical practitioner has certified that as a result of an assessment on 17 August 2017 she was satisfied that the respondent is mentally incapable because he suffers from senile dementia, is not wholly competent to manage his own affairs in relation to his property, and is mentally incapable, as he lacks the capacity to foresee the consequences of decisions made or foresee the consequences of any failure to make such decisions.

[5]                  The certificate states that the respondent has a worsening of memory and communication skills.

[6]                  In the circumstances, I am satisfied that the respondent is under disability and accordingly I make the vesting orders under s 52(1)(b)(i) and the orders sought in respect of the conduct of proceedings are made accordingly.

Cull J

Solicitors:

Armstrong Barton, Whanganui for the Applicant