Bateman v Whanga - [2023] NZHC 2517

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-71

[2023] NZHC 2517

UNDER the Administration Act 1969 and the Trusts Act 2019

IN THE MATTER

of the Estate of Roimata Whanga

BETWEEN

HARRIET AHUMAI WHANGA BATEMAN

Plaintiff

AND

RODNEY ROIMATA WHANGA

Defendant

Hearing: 24 July and 7 September 2023

Counsel:

Z T Mora for Plaintiff Defendant in person

Judgment:

7 September 2023

JUDGMENT OF ISAC J

[Application to remove executor and for vacant possession]

Introduction

[1] Mr Roimata Whanga passed away on 14 September 2018. In a will dated 12 September 2003, he appointed his son, Rodney Whanga, as the sole executor and trustee of his estate. Mr Whanga Snr left his estate to six of his eleven children. Rodney was not named as a beneficiary.1

1 Given Messrs Roimata and Rodney Whanga share a common surname, I will refer to the parties by their first names to avoid confusion. I mean them no disrespect in doing so.

BATEMAN v WHANGA [2023] NZHC 2517 [7 September 2023]

[2] The applicant, Ms Harriet Bateman, is a daughter of the late Mr Whanga and a beneficiary under his will. She says that in the four years since he obtained probate, Rodney has lived in his father’s house, failed to meet estate expenses, and otherwise failed to distribute the estate.

[3]Harriet, with the consent of the other beneficiaries, seeks orders:

(a)removing Rodney as executor;

(b)appointing her sister, Ms Maria Whanga-Pahi, another beneficiary under the will, as executor;

(c)granting vacant possession of two properties owned by the estate in Taupiri; and

(d)costs.

[4] The principal issue I must determine is whether it is “expedient” to remove Rodney as administrator of his father’s estate in terms of s 21 of the Administration Act 1969.

Background and procedural history

[5] The following background is derived from an affidavit by the applicant dated 2 December 2022, the documents annexed to it, and the court record.

[6] The late Mr Whanga has a large a whānau. He has 11 children; six sons and five daughters. He also has 49 grandchildren, 65 great grandchildren and 10 great great grandchildren. His will, made some 15 years before his death, appointed Rodney as executor, and named six of his other children as beneficiaries. He bequeathed the motor car owned at his death to Michael Whanga, and left the residue of his estate to be divided between his five daughters.

[7] The main estate assets known to the applicant are two properties on Great South Road, Taupiri. One lot has a house on it, the other is vacant. The extent of other estate assets is not known.

[8]Probate in common form was granted to Rodney on 29 March 2019.

[9] Harriet deposes that despite repeated urging by the beneficiaries, Rodney has taken no steps to administer the estate. He has failed to transfer the Taupiri properties into his own name as executor, gather in the wider estate assets, maintain the house and land,2…

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 Bateman v Whanga

Details

AGLC: Bateman v Whanga [2023] NZHC 2517
Case: [2023] NZHC 2517
Decision Date: 7 September 2023

CaseChat Overview and Summary

The High Court was asked to remove Rodney Whanga as the executor of his father Roimata Whanga’s estate and to appoint Harriet Bateman’s sister Maria Whanga-Pahi in his place. The application was made by Harriet Bateman, one of the beneficiaries of the estate under Roimata Whanga’s will. The court was also asked to order vacant possession of two properties owned by the estate in Taupiri and to award costs. The main issue before the court was whether it was “expedient” to remove Rodney as executor of the estate under s 21 of the Administration Act 1969. The court considered the evidence and submissions from both parties and concluded that it was appropriate to remove Rodney as executor and to appoint Maria in his place. The court found that Rodney had failed to carry out his core duties to call in and distribute the estate’s assets to the beneficiaries, neglected to ensure the proper maintenance of the house and land, and had been living in the house for several years despite not being a beneficiary. The court also found that Rodney’s personal interests were hopelessly conflicted with his duties as executor and that his relationship with the beneficiaries was hostile. The court considered the unanimous agreement of the beneficiaries to appoint Maria as executor and concluded that her appointment would further the interests of the beneficiaries as a whole. The court also considered the application for vacant possession of the Great South Road properties and adjourned the application for final determination until 7 December 2023. The court made orders removing Rodney as executor and trustee of the estate, appointing Maria as executor and trustee, adjourning the application for vacant possession, and granting costs in favour of the plaintiff against the defendant on a 2B basis.

Orders