IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-3234 [2015] NZHC 1139
IN THE MATTER OF the estate of ANN LANGDON MORGAN BETWEEN
ELISABETH ALLEN Plaintiff
AND
STEPHEN ALAN MORGAN Defendant
Hearing: 20 May 2015 Appearances:
N Tetzlaff for Applicant
Judgment:
26 May 2015
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie
On 26 May 2015 at 3.00pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date………………………………
Counsel:
Gaze Burt, North Shore City
ALLEN v MORGAN [2015] NZHC 1139 [26 May 2015]
Introduction
[1] The plaintiff, Ms Allen, seeks orders discharging the defendant, Stephen Alan Morgan (“Stephen”) as executor and trustee of the estate of Ann Langdon Morgan, and appointing Jennifer Leslie Goldsmith as an additional administrator of the estate in his stead.
[2] The application was made by way of originating application.
[3] On 18 December 2014, orders were made appointing a Mr Anton Heyns as litigation guardian for Stephen, and directing service on a Mr James Morgan, a Mr Anthony Morgan and a Ms Alana Thomlinson. There are affidavits of service on the Court file.
[4] Neither Stephen, nor any of the other parties served, has taken any steps in this matter. Accordingly the plaintiff seeks to proceed by way of formal proof.
Background
[5] The late Mrs Morgan died on 28 January 2011. She left a will dated 29 July
2003. She appointed her sister, Ms Allen and her son Stephen, to be the executors and trustees of her will. The beneficiaries are her three children, Stephen, Anthony Morgan, and Alana Thomlinson, and her grandson, James Morgan.
[6] The deceased’s estate comprises a house in Torbay, Auckland. As at December 2013 it was valued at $685,000. Further, there is cash in an ASB bank account in the names of the two executors. There is approximately $56,000 held in that account.
[7] At the time of her death, the late Mrs Morgan was acting as guardian of her grandson, James Morgan. He was living with her at the property in Torbay. Following Mrs Morgan’s death, Stephen became James’ guardian. An agreement was made between the beneficiaries that Stephen would continue to live at the Torbay property and that the property would not be sold until James had finished his
schooling. Stephen would not be required to pay rent during this time, but he was to pay all costs associated with the house and was to attend to minor maintenance.
[8] Shortly after his mother’s death, Stephen lost his job, and in the months following, it appears that he suffered from depression. He neglected to keep to the agreement. He did not pay the costs associated with the house; he did not attend to minor maintenance.
[9] James Morgan finished his schooling at the end of 2013 and consideration was then given to selling the house. It was proposed that Stephen would buy out the other beneficiaries. However that proved to be impracticable.
[10] In October 2014 Stephen was admitted to the…
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- Allen v Morgan [2015] NZHC 1139
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- [2015] NZHC 1139
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CaseChat Overview and Summary
The legal issues the court had to decide were whether Stephen's removal as an executor and trustee was appropriate and whether it was suitable to appoint Jennifer Leslie Goldsmith as an additional executor in his stead. The court found that Stephen's removal as an executor was appropriate, considering his significant impairment to his cognitive faculties and his inability to properly administer the estate and carry out his deceased mother's wishes. The appointment of Ms. Goldsmith as an additional executor was deemed appropriate as well, as it would help to insulate Ms. Allen from any potential criticism in the future and honor the deceased's wish of having two executors.
The court ordered the removal of Stephen as an executor and trustee of the estate and the appointment of Jennifer Leslie Goldsmith as an additional executor in his stead. The court also imposed conditions on the executors, such as filing a full inventory of the deceased's estate and a true and perfect account of the estate if called upon by the court. The court further directed that Ms. Allen is entitled to recover her reasonable costs and disbursements incidental to the application out of the estate.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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