Shaw v Shaw - [2020] NZHC 2910

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2020-476-000027

[2020] NZHC 2910

UNDER the Trustee Act 1956

IN THE MATTER

of an application for a vesting order

BETWEEN

DAVID ROBERT SHAW and STUART

JOHN SHAW as trustees in the Estate of Myra Loraine Shaw
Applicants

AND

DERRICK HENRY SHAW

Respondent

Hearing: Determined on the papers

Counsel:

S J Jamieson and G A Ryan for Applicants

Judgment:

5 November 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 5 November 2020 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SHAW v SHAW [2020] NZHC 2910 [5 November 2020]

Introduction

[1] This case concerns the Estate of Myra Loraine Shaw (Myra) who died at Ashburton on 15 June 2017.

[2] Myra was married to Derrick Henry Shaw (Derrick). Together Myra and Derrick owned a property at 35 Glassey Drive, Ashburton as tenants in common in equal shares.

[3] Myra died leaving a last will dated 10 September 2013. Probate of the will was granted to Derrick and the applicants on 10 July 2017. The applicants are Myra’s and Derrick’s sons.

[4] The assets of Myra’s Estate have been distributed with the exception of a one- half share in the property at 35 Glassey Drive, Ashburton.

[5] Under the terms of Myra’s will, Derrick has a life interest in the Estate’s one- half share of 35 Glassey Drive whilst he enjoyed the use and occupation of the property. Derrick has vacated the property on a permanent basis and his entitlement has terminated. Under Myra’s will the Estate’s one-half share of 35 Glassey Drive is now held on trust for the applicants.

[6] Derrick has resided at the Tuarangi Home, Ashburton since March 2020. He does not enjoy good health and suffers from Alzheimer’s Disease. He lacks mental capacity and is incapable of managing his own affairs as his Alzheimer’s Disease has significantly impaired his comprehension and judgement. Derrick granted an Enduring Power of Attorney in relation to his property under the Protection of Personal and Property Rights Act 1988 in favour of the applicant David Robert Shaw (David) which I understand has been activated.

[7] The applicants wish to sell the Glassey Drive property. Derrick is not in a position to sign the required sale and transfer documents as a result of his disability. David is able to sign such documents on Derrick’s behalf in respect of Derrick’s one- half share in the property. However, in respect to the Estate’s interest, the applicants

seek the assistance of the Court to remove Derrick as a trustee and vest the land in them as the continuing trustees of Myra’s will.

The application

[8]The applicants are applying for the following orders:

(a)that this proceeding be commenced by originating application under Part 19 of the High Court Rules 2016;

(b)the Court dispense with the appointment of a litigation guardian in respect of Derrick;

(c)that service of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shaw v Shaw

Details

AGLC: Shaw v Shaw [2020] NZHC 2910
Case: [2020] NZHC 2910
Decision Date: 5 November 2020

CaseChat Overview and Summary

The case of Shaw v Shaw involves the Estate of Myra Loraine Shaw, who died on 15 June 2017, leaving behind a last will dated 10 September 2013. The applicants, David Robert Shaw and Stuart John Shaw, are trustees in the Estate of Myra Loraine Shaw and Myra’s and Derrick’s sons. The dispute concerns the distribution of assets from Myra’s Estate, particularly the one-half share in the property located at 35 Glassey Drive, Ashburton, which was owned as tenants in common by Myra and Derrick. Derrick, who has a life interest in the property, has vacated the property and his entitlement has terminated. The applicants seek to sell the property, and Derrick's inability to sign the required documents due to his disability has led to this application to the High Court of New Zealand.

The primary legal issues before the Court were whether the proceeding could be commenced by originating application under Part 19 of the High Court Rules 2016, whether service of the proceeding on Derrick could be dispensed with, whether the appointment of a litigation guardian for Derrick was necessary, whether Derrick should be removed as a trustee, and whether the Estate's interest in the property should vest in the applicants. The Court had to balance the interests of the beneficiaries of the trust against the rights of Derrick, who is incapable of managing his own affairs due to his Alzheimer's Disease.

The Court determined that the proceeding could be commenced by originating application under Part 19 of the High Court Rules 2016 as it was in the interests of justice. The Court also dispensed with the service of the proceeding on Derrick, as it was not necessary for the application. Additionally, the Court found that the appointment of a litigation guardian for Derrick was unnecessary as he lacked capacity and it was in the best interests of the Trust to remove him as a trustee. The Court invoked its inherent jurisdiction to remove Derrick as a trustee and vest the Estate’s interest in the property in the applicants, as continuing trustees of Myra’s will. The Court found that it was in the best interests of the beneficiaries to remove Derrick as a trustee to facilitate the sale of the property.

In conclusion, the Court granted the applicants' orders, allowing the proceeding to be commenced by originating application, dispensing with service on Derrick, not appointing a litigation guardian for Derrick, removing Derrick as a trustee of Myra’s will, and vesting the Estate’s interest in the property in the applicants as continuing trustees of Myra’s will. No costs were sought or granted in this application.

Orders