Vesting order

This category contains 7 posts

Terms of trust appointing attorney

Parsonage v Parsonage relates to the currently vexed matter as to whether an attorney under an enduring power of attorney (EPoA) can exercise powers to appoint / remove trustees.  In Parsonage the relevant clause was as follows: 20 (a) THE power to appoint new Trustees shall be vested in Mary Parsonage during her lifetime and after … Continue reading

Harder than it looks

Vesting orders are commonly required for trusts and estates where one or more trustee has lost capacity and the assistance of the court is required to regularise property ownership.  While generally routine, each application depends on its own facts.  Lester AJ’s decision in Smith v Walsh is a good example of the nuances of incapacity and … Continue reading

Buyer’s remorse

Trusts can seem like a great idea.  And then one day a settlor can be confronted with the reality of the loss of control and cast around for someone to blame.  In addressing the realities of trust ownership, the exercise of powers of removal and appointment can offer a solution to issues with the dynamics between … Continue reading

Lost in translation

Orders removing trustees and appointing replacement trustees are not uncommon.  Such orders can be required in circumstances including incapacity, absence, deadlock or because it is expedient in the administration of the trust for a trustee to be removed and perhaps replaced.  However, it is important to appreciate that whether a trustee is removed / appointed … Continue reading

Once there were ten, now there are six – but the trust argument is avoided

Land owned by ten different owners as tenants in common was sold to a buyer who was required to apply for resource consents to subdivide the property and to obtain new titles. There was a dispute and following a settlement conference Harrison J ordered that on titles being issued the owners were to transfer one … Continue reading

Two trustees go down to the woods … one is discharged, one is not

The use of corporate trustees is a common response to trustee liability.  However, where one of two natural person trustees retires and a corporate trustee is appointed, it is important to consider whether the retiring trustee has been discharged.  See ss 43, 45 and 46 of the Trustee Act 1956, which provide: Relevant Legislation 43 Power … Continue reading

Who pays the piper?

When a trustee retires, it is necessary to transfer the trust’s assets from the trustees (including the retiring trustee) to the continuing and any new trustee.    Where a trustee is removed in contentious circumstances the trustee may be unwilling to assist in the transfer of trust property.  Sometimes with good reason – for example where … Continue reading