Allen v Morgan - [2015] NZHC 1139

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allen v Morgan

Details

AGLC: Allen v Morgan [2015] NZHC 1139
Case: [2015] NZHC 1139
Decision Date: 26 May 2015

CaseChat Overview and Summary

In the case of Allen v Morgan, the plaintiff, Ms. Elisabeth Allen, sought orders to discharge the defendant, Stephen Alan Morgan, from his position as an executor and trustee of the estate of Ann Langdon Morgan. She also requested the appointment of Jennifer Leslie Goldsmith as an additional administrator of the estate. The application was made by way of an originating application. The late Mrs. Morgan passed away on 28 January 2011, leaving a will dated 29 July 2003, which appointed Ms. Allen and Stephen as executors and trustees of her will. The beneficiaries of the estate are her three children, Stephen, Anthony Morgan, and Alana Thomlinson, and her grandson, James Morgan. The estate consists of a house in Torbay, Auckland, and cash held in an ASB bank account in the names of the two executors. Stephen, who was also acting as his grandson's guardian following his mother's death, suffered from depression and neglected to keep to the agreement made between the beneficiaries regarding the Torbay property. After Stephen's medical incident in October 2014, he lacked decision-making capabilities and was deemed unfit to continue as an executor and trustee of the estate.

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