Patten v Shepherd

[2020] NZHC 1072

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-547

[2020] NZHC 1072

IN THE MATTER

of an Application for a Vesting Order pursuant to Section 52 of the Trustee Act 1956

BETWEEN

JOHN SCOTT PATTEN

Applicant

AND

THELMA SYBIL SHEPHERD

Respondent

On the papers
Counsel:	T C Montague for Applicant
Judgment:	21 May 2020

JUDGMENT OF ELLIS J

[1]                 Mr John Patten and Mrs Thelma Shepherd (Thelma) are the trustees and executors  of  the  estate  of  the  late  Raymond  Harold   Shepherd   (Raymond).   Mr Shepherd died on 5 May 2005 and probate was granted on 15 November 2005. Thelma is Raymond’s widow. Mr Patten is Raymond’s and Thelma’s son-in-law.

[2]                 The only remaining asset in the estate is a one-half interest in a residential property at 76 Parata Street, Waikanae (the property). The other half of the property is owned by Thelma.

[3]                 In November 2016, Thelma appointed her daughter (Pamela Shepherd) to hold enduring power of attorney (EPOA) for her.1 Thelma is now 96 years old and suffers

1      Both in relation to personal welfare and property.

PATTEN v SHEPHERD [2020] NZHC 1072 [21 May 2020]

from dementia. The medical evidence filed in Court makes it clear that her cognitive impairments are likely to continue indefinitely.2 She now lives in a rest home and is receiving hospital-level care.

[4]                 The Parata Street property has been vacant for over two years and is proving a burden. There is no prospect that Thelma will return to live there. Mr Patten and the Shepherds’ two daughters (who are the only residuary beneficiaries under Raymond’s will) are agreed it should be sold.

[5]Mr Patten now applies for orders:3

(a)pursuant to s 21 of the Administration Act 1969, removing Thelma as an administrator of the Raymond’s estate;4 and

(b)vesting in him (as the remaining Executor and Trustee) the Executors’ one half share in the property.

[6]                 As just noted, the only persons who have an interest in either the will trust or the property (other than Mrs Shepherd) are Mrs Shepherd’s two daughters, Pamela and Joan (Mr Patten’s wife) as residuary beneficiaries of Mr Shepherd’s estate. Pamela has filed an affidavit in support of the vesting order sought, and both women have given their signed consent to the application for that order. Mrs Shepherd has no capacity and so is unable to consent. Her present circumstances are such that there can be no prejudice to her in making the orders.

[7]                 It is clearly necessary that the property be sold and that the orders sought are the only way this can be effected. I am therefore satisfied that both the substantive orders sought are appropriate.

[8]I therefore make orders:

2      The medical assessment was done last year.

3      Orders granting leave to commence by way of originating application, dispensing with service (on Thelma, her daughters or on any other person) and with the need to appoint a litigation guardian for Thelma have already been made by me.

4      This order was not initially sought, on the basis that Pamela could exercise her power under the EPOA to effect this. The application was subsequently amended to reflect my concern that powers under an EPOA do not extend that far: Godfrey v McCormack [2017] NZHC 420.

(a)removing Thelma Sybil Shepherd as an administrator of the estate of Raymond Harold Shepherd; and

(b)vesting the one half share of the residential property at 76 Parata Street, Waikanae being all of the land comprised and described in Certificate of Title with the identifier WN36B/153 (Wellington Registry) that is presently registered in the name of Thelma Sybil Shepherd and John Scott Patten as Executors in the name of John Scott Patten as continuing Executor and Trustee.

[9]I regret the delay in dealing with this matter.

Rebecca Ellis J

Solicitors:

Todd Whitehouse, Levin for Applicant