Willis v Willis

[2020] NZHC 1995

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2020-406-20

[2020] NZHC 1995

UNDER

the Trustee Act 1956

IN THE MATTER

of the Willis Family Trust

BETWEEN

THOMAS BLYTH WILLIS, BRUCE THOMAS CRUMPTON, LYNDAL PATRICIA WILLIS AND SHERYN NAOMI HARPHAM

Applicants

AND

JENNIFER ANNE WILLIS

Respondent

Hearing:	On the papers
Appearances:	J S Marshall for the Applicants
Judgment:	7 August 2020

JUDGMENT OF COOKE J

[1]By applications dated 16 July 2020 the applicants apply for orders:

(a)That these proceedings be commenced by originating application.

(b)That the application be made without notice to any other party.

(c)That the respondent need not be served with the proceedings.

(d)That a litigation guardian does not need to be appointed for the respondent.

WILLIS v WILLIS [2020] NZHC 1995 [7 August 2020]

(e)Vesting the Willis Family Trust property with the legal description;

(i)Lot 1 Deposited Plan 6644 in the Marlborough Land Register contained in Record of Title MB4A/1179;

(ii)Lot 11 Deposited Plan 4360 in the Marlborough Land Register contained in Record of Title MB2D/8929;

in the names of the trustees Thomas Blyth Willis, Bruce Thomas Crumpton, Lyndal Patricia Willis and Sheryn Naomi Harpham as joint tenants.

[2]                The application is supported by an affidavit from Thomas Blyth Willis dated 16 July 2020 and a memorandum of counsel.

Background

[3]                The Willis Family Trust was established on 16 October 1998, Mr Thomas Willis and his wife, Mrs Jennifer Willis joined Mr Bruce Crumpton as trustees.

[4]                Mr Thomas Willis has explained in his affidavit that his wife Jennifer no longer has capacity, and that she currently lives with him in Blenheim receiving care for alzheimers. He annexes a report from her general practitioner, Dr Guy Gardiner who explains that he has known Jennifer for decades, that she has significant dementia and that she has significantly reduced capacity to make strategic decisions.

[5]                In the circumstances by Deed dated 16 July 2020 Mr Willis has exercised his power of appointor under the Trust Deed to appoint their daughters, who join in this application, as trustees.

[6]                These steps do not achieve all that is needed, however, as Mrs Willis remains registered on the legal titles. It is this that has given rise to the need for these proceedings.

Decisions

[7]                In terms of the orders sought in paragraph (a)–(b) above, they are routine and regularly made in proceedings of this kind. I accordingly make them here. I am also satisfied based on the affidavit evidence that there is no need to serve any other persons, or appoint a litigation guardian for the reasons set out in the application.

[8]Section 52(1)(b) of the Trustee Act 1956 provides:

52     Vesting orders of land

(1)Subject to the provisions of subsections (2) and (3), in any of the following cases, namely—

…

(b)      where a trustee entitled to or possessed of any land or interest therein, whether by way of mortgage or otherwise, or entitled to a contingent right therein, either solely or jointly with any other person—

(i)is under disability;

…

the court may make an order (in this Act called a vesting order) vesting the land or interest therein in any such person in any such manner and for any such estate or interest as the court may direct, or releasing or disposing of the contingent right to such person as the court may direct.

[9]                This power can be utilised when a former trustee is no longer capable but remains on the title. For example it has been used in the case of an incapacitated trustee where the holder of an enduring power of attorney is not able to execute transfers.1 It has also been exercised when powers of an appointment under the trust deed do not address the situation.2 Ultimately the issue for the Court is whether ordering the changes to the certificate of title is appropriate in the circumstances of the case.

[10]            I am satisfied based on the evidence filed that Mrs Willis no longer has sufficient capacity to act, and that it is appropriate to make the orders sought in terms of the application. In particular the combined effect of the report from Dr Gardiner,

1      Godfrey v McCormick [2017] NZHC 420; Locker v Browning [2018] NZHC 1127.

2      Public Trust v Daken [2017] NZHC 1285.

Mr Willis’ affidavit and the circumstances generally satisfy me that the orders should be made.

[11]Accordingly the applications are granted in the terms sought.

Cooke J

Solicitors:
Gascoigne Wicks, Blenheim for the Applicants