Weir v Weir

[2016] NZHC 1920

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”