Reid v Wilsher

[2016] NZHC 1020

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CIV-2016-483-17 [2016] NZHC 1020

UNDER	the Trustee Act 1956
IN THE MATTER	of the Neil Wilsher Family Trust
BETWEEN	MARGARET HELEN REID Plaintiff
AND	MAY HARRIET WILSHER Defendant

On thepapers:
Counsel:	M J Bullock for Plaintiff
Judgment:	18 May 2016

JUDGMENT OF CLIFFORD J

[1]      The Neil Wilsher Family Trust (the Trust) was established by Mr Wilsher in March 1992.  Mr Wilsher is deceased.  Since establishment, the trustees of the Trust have been the applicant, Margaret Reid, along with her mother, May Harriet Wilsher and her sister, Barbara May Wolfenden (now Wilsher).

[2]      Mrs May Wilsher is no longer mentally competent.  Acting under s 43 of the Trustee Act 1956, Margaret Reid and Barbara Wilsher have recently appointed a new trustee in Mrs May Wilsher’s place. That new trustee is JRT Trustees Limited.

[3]      To enable the Trust to continue to function, and for the trustees to deal with the property of the Trust, Mrs Reid now seeks orders under s 52 of the Trustee Act

1956 vesting the Trust’s property at 19A Fergusson Street, Whanganui in the names

of  herself,  her  sister  Barbara Wilsher  and  JRT Trustees  Limited  as  the  current

REID v WILSHER [2016] NZHC 1020 [18 May 2016]

trustees of the Trust.   At the same time, Mrs Reid also seeks an order removing her mother, Mrs May Wilsher, as a trustee.

[4]      As a preliminary matter, I note that at the same time as filing her statement of claim, Mrs Reid applied for an order that service on her mother be dispensed with and that the application be decided on the papers.  Having read the affidavit material, including the medical reports provided, I am satisfied that service on Mrs Wilsher would serve no purpose.   I am also satisfied that Mrs Barbara Wilsher and JRT Trustees Limited support Mrs Margaret Reid’s application.   I therefore order that service of the proceeding on Mrs Wilsher be dispensed with and that no other person need be served.  I also determine that it is appropriate to decide this application, as requested, on the papers.

[5]      I am not persuaded that an order removing Mrs May Wilsher as trustee is called for.  Under s 43 of the Trustee Act, JRT Trustees Limited has been appointed a trustee in place of Mrs May Wilsher, because Mrs May Wilsher is unfit to act.  That appointment, in my view, brings Mrs May Wilsher’s trusteeship to an end. Adopting the words of s 43(1), JRT Trustees has been appointed “in the place of” Mrs May Wilsher.  Her appointment is, therefore, at an end.

[6]      It is, however, appropriate to make the order vesting the Trust property in the names of the three continuing trustees.  Section 52 of the Trustee Act provides for the making of such a vesting order in these circumstances.  Accordingly, there will be an order vesting the property at 19A Fergusson Street, Whanganui, Certificate of Title WN40D/141 in the names of the plaintiff, Margaret Helen Reid, her sister, Barbara May Wilsher and JRT Trustees Limited.

“Clifford J”

Solicitors:

Bullock and Associates, Whanganui for Plaintiff