White v White

In the High Court of New Zealand, Dunedin Registry, Andrew Peter White applied for various orders concerning the R L White Family Trust. The Trust was established by Ruby Lorraine White, who is now 86 years old and in care. The trust's asset is a property at 32c Frances Street, Balclutha. Andrew, Ruby's son, seeks to replace Ruby as a trustee of the Trust, as well as for a vesting order for the Trust property. The legal issues in this case involved whether Andrew should be granted leave to bring the application by way of an originating application, dispensing with service, dispensing with the need for Ruby Lorraine White to have a litigation guardian, removing Ruby Lorraine White as a trustee of the R L White Family Trust, and a vesting order under s 52 of the Trustee Act 1956.

The Court found that the application should be made by way of an originating application, as such applications are now routinely made in cases involving incapacitated trustees and vesting orders. The Court also found that there was no need for any other party to be served, as Ruby's children, who are the only beneficiaries of the Trust, all consent to the application. The Court found that it will be appropriate in due course to make an order removing Ruby as trustee under s 51 of the Trustee Act 1956 and appointing Andrew as trustee in her place, assuming that further medical evidence confirms Ruby’s lack of capacity. The Court also found that, assuming the preceding orders are made, it will follow that a vesting order in respect of the property at 32c Frances Street, Balclutha can be made to vest the property in the names of the trustees, Andrew Peter White and Wendy Joy Blackie. The Court invited Andrew’s counsel to file an updating letter from a medical practitioner in respect of Ruby’s mental capacity and at the same time to file draft orders reflecting the orders that will be made upon Ruby’s lack of capacity being made.

The Court held that the application was appropriate, save for the need for the updating medical evidence. The Court invited Andrew’s counsel to file an updating letter from a medical practitioner in respect of Ruby’s mental capacity and at the same time to file draft orders reflecting the orders that will be made upon Ruby’s lack of capacity being made. Assuming the medical evidence is as anticipated, and upon being satisfied that Ruby lacks capacity, the Court will be able to make the orders sought and approve the order for sealing.