Marshalll v Marshall

[2018] NZHC 2308

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-538

[2018] NZHC 2308

BETWEEN

ROBERT EDWARD MARSHALL

Applicant

AND

NOELEEN ANN MARSHALL

Respondent

Hearing:	On the papers
Counsel:	E J Collins for Applicant
Judgment:	4 September 2018

JUDGMENT OF GRICE J

[1]    Mrs Noeleen Marshall and her husband Mr Robert Marshall are the trustees of their family trust, the Marshall Family Trust. The Trust owns the family home and was settled on 23 May 2009.

[2]    The discretionary beneficiaries of the Trust are Mr and Mrs Marshall and their seven children, as well as their 12 grandchildren and two great-grandchildren.

[3]    Mrs Marshall is 86 years of age. Mr Marshall is 90 years. Mr Marshall wants to sell the property in order to enable him to move into the Woburn Masonic Village to be closer to his wife who is in the same village.

[4]    Initially, an application was made to remove Mrs Marshall as trustee leaving Mr Marshall as the sole trustee. However, following a minute from this Court, a further trustee is proposed to be added to the trust.   That is Lloyd John Collins.     Mr Collins is a solicitor who has acted for Mr and Mrs Marshall for many years. He assisted them in creating the Marshall Family Trust in March 2009. He has been their

MARSHALL v MARSHALL [2018] NZHC 2308 [4 September 2018]

solicitor since he commenced practice in 1982. He has personally known the Marshalls for about 40 years.

[5]    Mr Collins is also experienced in administering trusts and it is a special area of his practice. He is prepared to act as trustee of the Trust and has filed a formal affidavit to that effect.

[6]    Orders have been made granting leave to permit the proceedings be commenced  by  way  of  originating  application  and  an  order  that  service  on Mrs Marshall be dispensed with.

[7]    Orders are also sought dispensing with service on the discretionary beneficiaries. I was referred to the case of Godfrey & McCormick which dealt with similar circumstances to the present. 1 In that case the Judge made the orders removing one spouse as trustee, leaving two trustees. The Judge also made orders vesting the family property in the new trustees and dispensing with service of the application on the discretionary beneficiaries of the Trust.2 In that case there was no evidence as to whether the discretionary beneficiaries consented to the orders sought but the Judge noted that they are for an administrative step enabling the Trust to continue operating:3

… will not change any of the beneficiaries rights or entitlements under the Trust.

[8]    We are dealing with a similar situation here. The evidence before me indicates that Mr Collins is an appropriate person to be appointed as trustee to assist in the administration of the Trust. Mrs Marshall is now in care. Mr Marshall wishes to be with her and in order to fund that the home must be sold.

[9]    I do not have evidence as to whether the discretionary beneficiaries consent to this path but in the circumstances as in Godfrey it is an administrative step.

1      Godfrey & McCormick [2017] NZHC 420.

2 See above, n 1, at [6].

3 See above, n 1, at [6].

[10]   Accordingly, I am satisfied that Mrs Marshall should be removed as a trustee, evidence of her dementia having been provided by her attendant general practitioner, Dr Ralph Brock-Smith and an affidavit dated 16 July 2018.

[11]Accordingly, I make the following orders:

(a)Removing Noeleen Ann Marshall as trustee of the Marshall Family Trust (created by deed dated 23 March 2009);

(b)Vesting the title 66 Leighton Avenue, Woburn, Lower Hutt being all that land comprised and described in Computer Freehold Register Identify WN 58A\851 (Wellington Registry) in Robert Edward Marshall and Lloyd John Collins pursuant to s 52(1)(b)(i) of the Trustee Act 1956.

Grice J

Solicitors:

Collins & May Law Office, Lower Hutt