Trustees Executors Limited - [2015] NZHC 1329

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-370 [2015] NZHC 1329

UNDER Section 52 of the Trustee Act 1956

IN THE MATTER OF

The Ngaere Gillespie Family Trust

BETWEEN

TRUSTEES EXECUTORS LIMITED AND DEBORA-DALE YOUNG Applicants

Hearing: On the papers

Counsel:

G F Kelly for the Applicants

Judgment:

11 June 2015

JUDGMENT OF MALLON J

Introduction

[1] The applicants seek orders vesting title to land held by a trust in the present trustees of the trust and associated orders. The application relates to the Ngaere Gillespie Family Trust (the Trust). The orders sought arise because Ngaere Elsa Gillespie, the settlor of the Trust and one of the two trustees named in the trust deed, is no longer competent to act.

The facts

[2] The Trust was established pursuant to a deed of trust dated 2 June 1993. The trustees appointed were Ngaere Gillespie and The Trustees Executors and Agency Company of New Zealand Limited (Trustees Executors). The beneficiaries are Ngaere Gillespie, her husband (who died in 2011), her daughter (Debora-Dale Young) and other relatives. Clause 7.6 of the trust deed provides Ngaere Gillespie, as settlor, with the sole power during her lifetime to remove trustees and to do so
with or without appointing another trustee. Clause 7.7 provides that the settlor

In re Trustee Executors Limited [2015] NZHC 1329 [11 June 2015]

during her lifetime has the power to appoint further beneficiaries. Clause 7.8 provides that Trustees Executors has the power after Ngaere Gillespie’s death to appoint Debora-Dale Young to be a co-trustee.

[3] Ngaere Gillespie is now 85 years old. She resides in a rest home. She was referred to Dr Jane Walton, a consultant geriatrician and general practitioner at the request of Trustees Executors. The purpose of the referral was to assess whether Ms Gillespie was capable of continuing her role as trustee. Dr Walton provided her assessment on 9 February 2015. Her view was that Ms Gillespie was not capable. She noted that Ms Gillespie did not appear to be surprised by this conclusion and was not upset about it.

[4] Following this assessment, by a deed dated 18 February 2015, Trustee Executors appointed Debora-Dale Young as trustee in the place of Ms Gillespie. This appointment was made pursuant to s 43 of the Trustee Act 1956. Ms Young is also Ms Gillespie’s sole attorney, pursuant to an enduring power of attorney in relation to property signed on 13 July 2011.

[5] The principal asset of the Trust is a house at 3 Penning Road, Auckland. Title to the property is registered as to an effective 85 per cent share in Trustees Executors and Ms Gillespie, and as to an effective 15 per cent share in Ms Young, her husband and Wylie McDonald Trustees No 1 Limited. The 85 per cent share held by Trustees Executors and Ms Gillespie is in their capacity as trustees of the Trust.

The application

[6] The application is brought because the property interest held by the Trust needs to…

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.

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Details

AGLC: Trustees Executors Limited [2015] NZHC 1329
Case: [2015] NZHC 1329
Decision Date: 11 June 2015

CaseChat Overview and Summary

Trustees Executors Limited and Debora-Dale Young, as applicants, sought orders to vest title to land held by the Ngaere Gillespie Family Trust in the present trustees of the trust. The application was made due to the incapacity of Ngaere Elsa Gillespie, the settlor of the Trust and one of the two trustees named in the trust deed. Clause 7.6 of the trust deed granted Ngaere Gillespie, as settlor, the sole power during her lifetime to remove trustees and to appoint further beneficiaries. Clause 7.8 provided that Trustees Executors had the power after Ngaere Gillespie’s death to appoint Debora-Dale Young to be a co-trustee. The application was brought because the property interest held by the Trust needed to vest in the new trustee, Debora-Dale Young, and the continuing trustee, Trustees Executors. This was due to Ms Gillespie being assessed as incapable of acting as trustee, and therefore incapable of effecting the transfer. The trustees asked the Court to exercise its power under s 52(1)(b)(i) of the Trustee Act 1956. The court found it appropriate to make the orders sought. The application was properly supported by evidence. The grounds were made out for the orders. All potentially affected parties were aware of the proceeding and consented to the vesting orders. The orders in relation to clauses 7.6 and 7.7 appropriately vested in the trustees as a result of Ms Gillespie’s incapacity. The court made the following orders: leave was granted to commence the proceeding by originating application, service of the proceeding was dispensed with, title to the land was vested in the names of Debora-Dale Young and Trustees Executors Limited, and the settlor’s powers in clauses 7.6 and 7.7 of the trust deed were vested in Trustees Executors Limited and Debora-Dale Young as trustees of the trust during the settlor’s lifetime.

Orders