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Incapacitated trustees

From time to time a trustee will lose mental capacity and it will be necessary for the trustee to be replaced and for the trust’s assets to be transferred to the new trustee.  While the deed of trust may include a power of attorney in it to facilitate the transfer of trust assets in such circumstances, the practical reality is that these powers of attorney cannot be used to transfer trust assets. 

Fortunately the Trustee Act can assist.  Section 52 of that act empowering the Court to vest assets in new and continuing trustees where the trustee is unable to sign the requisite authorities or has been removed as a trustee.

References:

  • Trustee Act 1956, s 52
  • Re Estate Stokes [2013] NZHC 1365

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