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 or pay rates on the properties.3 Rodney lives in the house and does not otherwise contribute to estate maintenance or expenses. Harriet did not know whether he is paying rent to the estate.

[10]   Harriet says that attempts to encourage Rodney to carry out his duties as executor have included:

(a)requesting Rodney take steps to call in the estate assets;

(b)holding an online family meeting in early July 2020 to discuss administration of the estate;

(c)engaging solicitors to write to the estate’s lawyers on 17 July 2020, in which Rodney and the beneficiaries were invited to a without prejudice hui;

(d)resolving with the beneficiaries to place the estate residue in a trust for the benefit of whānau members. Harriet says that when this decision was presented to Rodney in late 2020, “he became confrontational, swore and refused to do it”;

(e)attending various online family meetings in 2020 and 2021; and

2      Harriet’s evidence is that her son has been mowing the lawns and carrying out maintenance, and that residents at the house have reported that it needs repairs.

3      Harriet has been paying the rates herself.

(f)attending a meeting of beneficiaries on 5 May 2022 where it was unanimously agreed to remove Rodney as executor.

[11]   Despite these efforts, estate matters have not progressed. The deadlock resulted in the filing of these proceedings on 20 March 2023, seeking replacement of the executor and vacant possession of the estate properties. The beneficiaries collectively have nominated their sister, Maria Whanga-Pahi, to be the executor, and she has consented to take on that role. Maria handles all whānau affairs concerning Māori Land Court matters and is considered the whānau “secretary”. Further, Harriet deposes that all of the siblings, not just those named as beneficiaries, unanimously support the application.

[12]   The matter was called in the civil list before Tahana J on 31 May 2023.4 Rodney appeared in person at the teleconference. He confirmed that he wished to oppose the application, and explained the reasons for his opposition (although those are not recorded in the Judge’s Minute). Tahana J encouraged Rodney to obtain legal advice. Her Honour then directed that Rodney file and serve any opposition to the application by 15 June 2023, and written submissions in opposition by 29 June 3023.5 He did not comply with those directions.

[13]   The matter was called before me on 24 July 2023. At the hearing, Rodney sought an adjournment, claiming that he had only learned about the hearing the day before when he found the Court’s letter containing notice of the fixture in his garden.6 I granted the adjournment subject to strict timetabling orders requiring Rodney to file and serve a notice of opposition, evidence and submissions in support by certain dates. Rodney has complied with those conditions.

[14]   Rodney’s evidence, provided in an affidavit of 4 August 2023, is that he considers his father’s will does not give effect to his father’s intentions as a result of undue influence exerted by some of his sisters. His proposal is “that the estate now be

4      Bateman v Whanga HC Hamilton CIV 2023-419-71, 31 May 2023 (Minute of Tahana J).

5      Tahana J also directed that Mr Whanga’s four other sons who were not named as beneficiaries be served with the documents filed by the applicant in the proceeding. Service on those people has occurred.

6      Bateman v Whanga HC Hamilton CIV-2023-419-71, 24 July 2023 (Minute of Isac J).

wound up and distributed equally to all of my father’s offspring which was clearly his intention all along”. Rodney also deposed that he has “personally contributed $10,340 to the estate” between July 2021 and July 2023, and provided bank records indicating he has routinely made weekly payments with the description “Taupiri rent”.

[15]   Rodney’s affidavit prompted reply affidavits from Harriet and Rosemary denying allegations contained in his evidence. It seems clear from their evidence that the family’s relationship with Rodney is strained. Their affidavits include suggestions that Rodney has been abusive and threatening toward his whānau, and has repeatedly refused requests to progress administration of his father’s estate. During the hearing before me today Rodney reiterated submissions he had made previously, which confirm an attitude of hostility toward some members of his family. A copy of an affidavit purporting to be from Wayne Whanga, a brother of the parties, is also on the Court file. I have not taken it into account as it is not an original document and it is not clear from the copy if the deponent has made the statement on oath in terms of the Oaths and Declarations Act 1957 or the High Court Rules 2016.

Jurisdiction

[16]   Section 21 of the Administration Act confers a broad discretion to discharge or remove an administrator where it is “expedient” to do so. Associate Judge Osborne (as he then was) observed that the term expedient:7

… imports considerations of suitability, practicality and efficiency. In the context of estate administration the use of the term “expedient” therefore demands an overarching question – will removal of the administrator be a suitable, practical and efficient means of advancing the interests of the estate and of its beneficiaries?

[17]The principles informing the exercise of the Court’s discretion are as follows:8

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

(b)This jurisdiction involves a large discretion which is heavily fact- dependent.

7      Crick v McIllraith [2012] NZHC 1290 at [18].

8      Farquhar v Nunns [2013] NZHC 1670; Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145 at [22];

and Frickleton v Frickleton [2016] NZCA 408, [2017] 2 NZLR 154 at [29].

(c)The wishes of the testator/settlor (evidenced by the appointment of a particular executor or trustee) are to be given consideration, but ultimately the question is as to what is expedient in the interests of the beneficiaries.

(d)Expedience is a lower threshold than necessity, and imports considerations of suitability, practicality and efficiency. Misconduct, breach of trust, dishonesty, or unfitness need not be established.

(e)Hostility as between administrators/trustees and beneficiaries is not of itself a reason for removal, but hostility will assume relevance if and when it risks prejudicing the interests of the beneficiaries.

Submissions

[18]   Rodney submits that Harriet has failed to establish sufficient basis in fact or law for his removal as executor.9 He says that his father’s will is the product of undue influence or manipulation by one or more of his siblings, and that his father’s true intention was to benefit all his children. Further, he argues that the applicant’s evidence fails to disclose “the full background of the case”, including alleged admissions by two of the beneficiaries that they had contradicted their father’s wishes in drafting the will and then pressured him to sign it. In short, Rodney maintains that the will does not reflect his father’s true wishes and, accordingly, he cannot be criticised for having failed to distribute the estate in accordance with its terms. He submits that he has been paying rent at the property for years now and should not be evicted from it.

[19]   Mr Mora for the applicant submits that Rodney’s opposition merely proves why he is unsuitable to be the executor and trustee of the estate. Despite considering the will is a product of undue influence, Rodney has taken no steps in over four years to make an appropriate application to the High Court challenging the will. Instead, he has refused to distribute the estate according to its terms and has personally benefited from his failure of duty despite not being a beneficiary. This amounts to a clear conflict of interest, if not a breach of trust.

9      He provided written submissions dated 18 August 2023, and made oral submissions at the hearing before me today.

Consideration

Removal and appointment of executor

[20]   I have reached the clear conclusion that it is appropriate to remove Rodney as executor and appoint Maria in his place. My reasons are as follows.

[21]   First, Rodney has failed to carry out his core duties to call in and distribute the estate’s assets to the beneficiaries, in particular the house and properties on Great South Road, Taupiri. In addition, it appears that Rodney has neglected to ensure the proper maintenance of the house and land, and is not inclined to undertake or fund the required work. The beneficiaries’ interests will be prejudiced by continued neglect of the estate’s main assets.

[22]   Second, well over four years have now elapsed since probate was granted with no progress on the administration of the estate. Further delay is not in the best interests of the beneficiaries. The evidence also indicates that the issues faced by the estate are unlikely to be capable of informal resolution.

[23]   Third, I agree with Mr Mora that the opposition Rodney has advanced establishes precisely why he must be removed. Rodney’s duties as executor and his personal interests are hopelessly conflicted. He simultaneously seeks to challenge the will while also relying on his appointment as executor under it. He has also sought to prefer his interests over those of the beneficiaries. Rodney is not a beneficiary of the estate, but has been living at the house for several years now. Harriet’s evidence is that the collective wish of the beneficiaries (and wider whānau) is to place the residue of the estate in trust for the benefit of all whānau members, but that Rodney opposes the proposal. In my view, Rodney’s personal interest in delaying or preventing administration of the estate renders him incapable of acting in accordance with the best interests of the beneficiaries. While it is open for Rodney to challenge the will should he wish, he cannot do so while purporting to remain as executor.

[24]   Fourth, the submissions and evidence I have received confirm that there is a relationship of hostility between Rodney and some (possibly all) of the beneficiaries.

Hostility of this kind is inconsistent with the obligations of even-handedness required of an executor.

[25]   Finally, I am told that the beneficiaries have unanimously agreed to the appointment of their sister, Ms Maria Whanga-Pahi, as executor. In the circumstances, the beneficiaries’ support for and relationship with the proposed executor strengthens the conclusion that her appointment is likely to further the interests of the beneficiaries as a whole.

[26]   Accordingly, I order that Rodney be removed as executor and trustee of the estate, and order that Maria be appointed as executor and trustee.

Vacant possession

[27]   I also consider it is appropriate to grant the application for vacant possession of the Great South Road properties. Indeed, that effectively follows as a result of the order appointing Maria as executor of the estate. As Mr Mora submitted for the applicant, the real property of an estate vests in the executor,10 and thereafter the executor has the right to exclude all other persons from possession unless they can demonstrate a legal entitlement to continue to occupy the property.11

[28]   However, at the hearing Mr Mora advised that the beneficiaries are still contemplating establishing a whānau trust of which all siblings may become beneficiaries, including Rodney, and that it is possible the new executor may not require him to leave the house. Of course, the management of the estate is a matter for the executor bearing in mind the interests of the beneficiaries. I express no view on how she is to discharge her duties. However, given it appears no final decision has yet been made about Rodney’s continued occupation of the house, I consider the most I should do at this juncture is indicate that if a final decision is made requiring Rodney to vacate the house, I am very likely to grant the order. That preserves the ability for the estate to reach an agreement with Rodney about his continuing occupation, and it

10     Administration Act 1969, s 21(3).

11     Jensen v Jensen [2019] NZHC 329 at [25]–[26].

will also provide Rodney with time to find new accommodation should he prefer to do so.

[29]   Accordingly, I adjourn the application for vacant possession for final determination on or before 7 December 2023. If a satisfactory family arrangement is not achieved, Harriet and Maria have leave to seek the order by memorandum. Depending on the position relayed to me, I may be inclined to grant the order on the papers. Rodney would do well to endeavour to work constructively with his family to reach a position which is satisfactory to all.

Conclusion and result

[30]I make the following orders:

(a)The defendant, Mr Rodney Whanga, is removed as executor and trustee of the estate of Roimata Whanga.

(b)Maria Whanga-Pahi is appointed as executor and trustee of the estate.

(c)The application for an order for vacant possession is adjourned until 7 December 2023 for final determination on the terms set out at [29] above.

(d)Costs are granted in favour of the plaintiff against the defendant on a 2B basis. If costs cannot be agreed between the parties, costs memoranda of not more than two pages (excluding schedules) maybe filed.

Isac J

Solicitors:
McCaw Lewis, Hamilton for Applicant