Wilson v Wilson

[2019] NZHC 1636

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-146

[2019] NZHC 1636

UNDER

Section 52 of the Trustee Act 1956

IN THE MATTER OF

The Sebastian Family Trust

BETWEEN

SHONA ANNE LORRAINE WILSON, ANDREW DOUGLAS ALISTAIR WILSON, MORAG SHEENA CAROLINE GURNSEY and EWAN ANGUS DUNCAN

WILSON as Trustees of the SEBASTIAN FAMILY TRUST
Applicants

AND

NANCY HANNAH WILSON

Respondent by her litigation Guardian DAVID JAMES TAYLOR

Respondent

On the papers	at Auckland
Judgment:	15 July 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 15 July 2019 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

D Mayall, Niemand Peebles Hoult, Hamilton D J Taylor, Barrister, Hamilton

WILSON V WILSON [2019] NZHC 1636 [15 July 2019]

[1]                 The applicants are the trustees of the Sebastian Family Trust (“the Trust”) and seek a vesting order under s 52 of the Trustee Act 1956.

[2]                 The application is  necessary  because  property  owned  by  the  Trust  at  128 Lake Crescent, Hamilton as set out in Certificate of Title identifier SA26D/776 (“the property”) is currently vested in the  respondent,  Nancy  Hannah  Wilson (“Mrs Wilson”), a former trustee of the Trust.

[3]                 Unfortunately, Mrs Wilson no longer has the mental capacity to look after either her own affairs or the affairs of the Trust and this led to her removal as a trustee on 16 May 2019. Despite being removed as a trustee of the Trust, Mrs Wilson remains as a registered proprietor of the property in her capacity as a trustee of the Trust. An order is accordingly necessary to ensure that the registered owners of the property reflect the current trustees of the Trust, and as Mrs Wilson is unable to execute any documents to remove herself as a registered proprietor of the property, the present application is required.

[4]                 In accordance with r 4.30 of the High Court Rules, at the time the present application was filed the applicants sought the appointment of David Taylor as litigation guardian for Mrs Wilson. Mr Taylor’s appointment was confirmed by Jagose J on 17 June 2019 and Mr Taylor has now had the opportunity to meet with Mrs Wilson and report to the Court. Mr Taylor’s observations are entirely consistent with earlier medical opinion and confirms that in his view the orders are appropriate to enable the applicants to deal with the Trust property and with Mrs Wilson’s own obligations as a former trustee.

[5]                 In all of the circumstances it is quite clear that it is appropriate to make the orders sought. I therefore make the following orders by consent:

(a)That the property situated at 128 Lake Crescent as set out in the Certificate of Title identifier SA26D/776 shall vest with the Trustees of the Sebastian Family Trust.

(b)That actual and reasonable costs incurred by Mrs Wilson in this proceeding shall be met by the Sebastian Family Trust.

Powell J