IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CIV-2016-406-21 [2016] NZHC 1920
UNDER
Section 52 of the Trustee Act 1956
BETWEEN
JOHN STUART WEIR, ALISTAIR ROSS WEIR AND ROBYN JEANETTE WEIR Applicants
AND
STUART WEIR Respondent
Hearing:
On the papers
Counsel:
G F Kelly for the Applicants
Judgment:
18 August 2016
JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
3 pm on the 18th day of August 2016
WEIR v WEIR [2016] NZHC 1920 [18 August 2016]
[1] By Deed dated 30 June 2002 William Hugh Weir settled the Weir Family Trust (the WFT). The original trustees were Stuart Weir, his wife, Margaret Jeanette Dickson Weir and Trevor Leonard Webb. Mr Webb was later replaced by a corporate trustee, Hinton & Associates Trustee Company No. 1 Ltd (Hinton). The final beneficiaries under the WFT are Stuart and Margaret’s children, Robyn Jeanette Weir, John Stuart Weir and Alistair Ross Weir. They are the applicants in the present matter.
[2] The WFT’s main asset is a property at 175 Mills & Ford Road, Rapaura
(Identifier 255563).
[3] Stuart Weir now suffers from dementia and that this condition has existed for some time. The evidence of this is in the form of a medical certificate from Dr Helen Pike dated 13 March 2016. Stuart Weir’s incapacity means that, under cl 12.2 of the Trust deed, he ceases to hold office and no longer has the power to appoint and remove trustees. That power now (by cl 12.4.2) resides solely in Margaret Weir.
[4] Stuart Weir is also incapable of executing documents transferring trust property.
[5] A Deed dated 13 May 2016 records that:
(a) Margaret Weir has removed Stuart Weir as a trustee of the WFT; (b) Margaret Weir and Hinton have retired as trustees of the WFT;
(c) Margaret Weir has appointed Robyn Jeanette Weir, John Stuart Weir and Alistair Ross Weir as the new trustees of the WFT;
(d) the new trustees have agreed to their appointment.
[6] Agreement has also been reached for the sale of the property at 175 Mills & Ford Road. Settlement cannot be effected until the property is vested in the name of the three new trustees. Stuart Weir is not able to authorise transfer because of his
incapacity. Stuart Weir’s attorneys under an enduring power of attorney are
Margaret Weir and Robyn Weir.
[7] The District Land Registrar will not accept the use of the power of attorney and the Deed as a basis for transferring of the 175 Mills & Ford Road property. Accordingly the new trustees have made a without notice originating application to obtain a vesting order so that the property may be transferred into the names of the new trustees. Section 52(1)(a) and (b)(i) of the Trustee Act 1956 are the relevant authorising provisions and there is plentiful authority on their use in circumstances such as the present.
[8] The purpose of the vesting order is to regularise the position so that all present trustees are shown as the registered proprietors. I am satisfied that an order should be made vesting the property at 175 Mills & Ford Road in the names of Robyn Jeanette Weir, John Stuart Weir and Alistair Ross Weir. The vesting order is made on the basis that they are to hold the property as trustees for the WFT.
[9] I also make an ancillary order dispensing with service of the application on
Margaret Jeanette Dickson Weir and Hinton & Associates Trustee Company No 1
Ltd. Both Margaret Weir and Hinton are signatories of the Deed appointing the new Trustees. There can be no question of their opposing the making of the vesting order.
[10] Unless the applicants file a memorandum to the contrary within five working days of this judgment there will also be an order that all costs in relation to this
application are to be paid out of the WFT’s funds.
Solicitors: Greg Kelly law Limited, Wellington, for Applicants
“Rebecca Ellis J”
Details
AGLC
Weir v Weir [2016] NZHC 1920
Case
[2016] NZHC 1920
Decision Date
CaseChat Overview and Summary
The applicants, John Stuart Weir, Alistair Ross Weir and Robyn Jeanette Weir, brought an application under section 52 of the Trustee Act 1956 against their father, Stuart Weir, who is a trustee of the Weir Family Trust. The trust's primary asset is a property at 175 Mills & Ford Road, Rapaura. Stuart Weir is unable to transfer the property due to his incapacity, which is evidenced by a medical certificate from Dr Helen Pike dated 13 March 2016. The applicants seek a vesting order to transfer the property into the names of the new trustees.
The central issue in this case was whether the court should grant a vesting order under section 52 of the Trustee Act 1956 to facilitate the transfer of the property into the names of the new trustees. The applicants argued that the order was necessary to regularise the position, as Stuart Weir was incapable of executing documents transferring trust property. The court had to determine if the applicants had satisfied the requirements of the Trustee Act and if the order was appropriate in the circumstances.
The court held that the applicants had satisfied the requirements of section 52 of the Trustee Act 1956. The applicants had demonstrated that Stuart Weir's incapacity meant that he could not execute documents transferring trust property, and that the new trustees had agreed to their appointment. The court also noted that there was plentiful authority on the use of the vesting order in similar circumstances. The court was satisfied that the vesting order should be made to regularise the position and ensure that all present trustees were shown as the registered proprietors. The court also made an ancillary order dispensing with service of the application on Margaret Jeanette Dickson Weir and Hinton & Associates Trustee Company No 1 Ltd, as they were signatories of the Deed appointing the new Trustees and could not be opposed to the making of the vesting order.
The court ordered that the property at 175 Mills & Ford Road be vested in the names of Robyn Jeanette Weir, John Stuart Weir and Alistair Ross Weir, as trustees for the Weir Family Trust. The court also ordered that all costs in relation to the application were to be paid out of the WFT’s funds, unless the applicants filed a memorandum to the contrary within five working days of the judgment.