Abbott v Abbott

[2025] NZHC 3000

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2025-441-68

[2025] NZHC 3000

IN THE MATTER

of an application for removal of the administrators of the estate of Honor Rhodesia Abbott

BETWEEN

NERILEE ABBOTT

Plaintiff

AND

MARIANA ABBOTT and DANA-LEE JOHNSON

Defendants

Hearing:

6 October 2025

Appearances:

D M Kerr for Plaintiff

No appearance for Defendants

Judgment:

10 October 2025

JUDGMENT OF BOLDT J

Introduction

[1]                 Honor Rhodesia Abbott (Honor) died in December 2015 at the age of 62. She was survived by five of her six children but did not leave a will. In February 2017 this Court  issued  letters  of  administration  in  favour  of  Honor’s  daughters,  Dana-Lee Johnson and Mariana Abbott.1 The estate has not yet been distributed, and their sister, Nerilee Abbott, now seeks an order discharging Dana-Lee and Mariana as administrators.

1      As some parties share the same surname, I refer to the parties by their first names throughout the judgment.

ABBOTT v ABBOTT [2025] NZHC 3000 [10 October 2025]

[2]                 Honor’s estate was not large. Apart from some modest savings in a Kiwisaver account and a handful of Bonus Bonds, her only asset was a residential property on the outskirts of Hastings. Today the house has a registered valuation of $500,000. Although Dana-Lee and Mariana have been seized of the estate for nearly nine years, Honor’s house has not been sold.

The proceeding

[3]                 Nerilee seeks an order under s 21 of the Administration Act 1969 removing her sisters as administrators of Honor’s estate, and replacing them with Mr Iain Taylor, a Hastings solicitor. Nerilee seeks the order because of Dana-Lee and Mariana’s inaction in fulfilling their role as administrators.

[4]                 Nerilee began seeking information about the administration of the estate last year. Earlier this year, Nerilee and her solicitors wrote to the defendants and their solicitors. In March 2025, the defendants’ solicitors indicated there would shortly be a family meeting, but  that they did not  otherwise have current instructions.   On     1 July 2025, Nerilee commenced the current proceedings and served them on Dana-Lee and Mariana.

[5]                 Dana-Lee and Mariana have taken no steps in response. They have not filed a statement of defence, nor have they offered any explanation for the delays in the administration of the estate. Mariana is living in Honor’s house; it appears she is attending to the rates and insurance and paying the (small) mortgage but, at least prior to the commencement of these proceedings, there was no evidence she and Dana-Lee had taken any steps to realise the equity in Honor’s home or distribute it to the beneficiaries.

[6]                 Isac J listed the proceeding for formal proof. Mr Kerr, on Nerilee’s behalf, appeared before me seeking orders by default. There was no appearance on behalf of Dana-Lee and Mariana.

[7]                 Mr Kerr advised me he had recently been in email contact with the defendants’ solicitor, who indicated that a family member — a nephew of all three parties — has

offered to purchase the property for $375,000. Mr Kerr advised that Nerilee considers that offer well short of the property’s market value.

[8]                 Although the time for filing a statement of defence has long lapsed, I sought an update from the defendants’ solicitor about the administration of the estate. He replied that Dana-Lee and Mariana will not accept their nephew’s offer in light of Nerilee’s objection, and that they do not oppose the s 21 order.

Section 21

[9]Section 21 of the Administration Act relevantly provides:

21       Discharge or removal of administrator

(1)Where … it becomes expedient to discharge or remove an administrator, the court may discharge or remove that administrator, and may if it thinks fit appoint any person to be administrator in his or her place, on such terms and conditions in all respects as the court thinks fit.

(2)The administrator so removed or discharged shall, from the date of that order, cease to be liable for acts and things done after that date.

(3)Upon any administrator being discharged or removed as aforesaid (whether or not any other administrator is appointed) all the estate and rights of the previous administrator or administrators which were vested in him or her or them as such shall become and be vested in the continuing administrator or administrators (including any administrator appointed under subsection (1)) who shall have the same powers, authorities, discretions, and duties, and may in all respects act, as if he or she or they had been originally appointed as the administrator or administrators.

[10]The relevant principles are well settled:2

(a)The starting point is the Court’s duty to see estates properly administered and trusts properly executed;

(b)The jurisdiction is discretionary and heavily fact dependent;

2      Farquhar v Nunns [2013] NZHC 1670 at [13] affirmed by the Court of Appeal in Tod v Tod [2015] NZCA 501; [2017] 2 NZLR 145 at [22]; and Frickleton v Frickleton [2016] NZCA 408; [2017] NZLR 154 at [29].

(c)Ultimately the question is what is expedient in the interests of the beneficiaries;

(d)Expedience is a lower threshold than necessity. Misconduct, breach of trust, dishonesty or unfitness need not be established.

Decision

[11]              An order discharging Dana-Lee and Mariana is plainly appropriate in this case. They have neglected their responsibilities over an extended period. Their inactivity, combined with the absence of any communication with the beneficiaries, means it is expedient for them to be replaced as administrators. I agree it is appropriate for an independent and professional administrator to be appointed instead.

[12]              Accordingly, I make an order under s 21(1) of the Administration Act discharging Dana-Lee and Mariana as administrators of Honor’s estate. I appoint Iain Andrew Taylor in their place. Mr Taylor is entitled to have his reasonable fees met from the estate.

[13]              While Dana-Lee and Mariana’s solicitor advised they lack the financial means to participate in the proceeding, this application has only been necessary because of their ongoing inaction in administering the estate, and because they failed to respond to Nerilee’s reasonable inquiries. Nerilee should not have been required to bring these proceedings to secure progress in the administration. I order Dana-Lee and Mariana to pay Nerilee’s costs on a 1A basis.

Boldt J