Removal of trustees

As noted in Van Boxel v Van Boxel at [4]

“The application arises in what are familiar circumstances to this Court. The Trust owns a number of properties of which all three trustees are registered proprietors. Although Mr van Boxel holds enduring powers of attorney from his wife it is a matter of record that the District Land Registrar will not act under such powers so as to transfer Ms van Boxel’s interest to those trustees with capacity.”

Muir J found it unnecessary to appoint a litigation guardian to represent Mrs van Boxel, who suffered from dementia and would not have understood any advice given to her.  This decision was fortified by the fact that there was an independent trustee.  See [8]. Service on Mrs van Boxel and the discretionary beneficiaries was also dispensed with.

The number of court applications seeking vesting orders continues unabated.  While each case turns on its own facts, some consistent themes include:

1. Trustees who have lost capacity must be removed
2. An attorney under an ending power of attorney cannot excise personal or trustee powers that relate to the appointment and removal of trustees and cannot sign transfers in respect of trust property
3. Whether beneficiaries must be served may be influenced by the existence of an independent trustee.

References:

• Van Boxel v Van Boxel [2018] NZHC 706
• MacPherson v MacPherson [2016] NZHC 332
• Cade v Cade [2016] NZHC 1624