Bell v Bell - [2016] NZHC 1589

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2016-470-062 [2016] NZHC 1589

UNDER the Trustee Act 1956

IN THE MATTER

of an application to remove a trustee

BETWEEN

SHIRLEY VINER BELL Applicant

AND

MAXINE WENDY BELL Respondent

Hearing: 12 July 2016

Appearances:

J Hakaria for the Applicant
No appearance by the Respondent

Judgment:

13 July 2016

JUDGMENT OF THOMAS J

This judgment was delivered by me on 13 July 2016 at 4pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Sharp Tudhope, Tauranga.

BELL v BELL [2016] NZHC 1589 [13 July 2016]

Introduction

[1] The applicant, Mrs Shirley Bell, seeks orders removing her daughter, the respondent, Maxine Bell, as a trustee of the estate of Donovan Bell, her late husband. The application is unopposed, and the matter therefore proceeds by way of formal proof.1

[2] Mr Bell passed away on 4 April 2009, and his half share in the family property located in Tauranga (the house) passed to the estate. Pursuant to his will, Mrs Bell, the respondent, and Linda Williamson (another daughter of Donovan and Shirley Bell) were appointed as trustees and executors. Mrs Bell says that the respondent is estranged from the other trustees and refuses to engage in decision- making, particularly with regard to the house, which Mrs Bell now wishes to sell.

[3] Mrs Bell seeks the removal of the respondent, and says that it is unnecessary to substitute a new trustee. In the alternative, she seeks that the respondent be replaced with Adrienne Chalada, another of her daughters.

Factual background

[4] As the respondent has not taken any part in the proceedings, the only evidence is contained in the affidavits of Ms Williamson and Mrs Bell.

[5] The affidavits record that Mr and Mrs Bell had four children: the respondent, Ms Williamson, Adrienne Chalada and Suzanne Hamson. It is likely that Ms Williamson and the respondent were chosen as executors because they were the two children living in New Zealand at the time.

[6] Mr and Mrs Bell owned the house as tenants in common in equal shares. Mr Bell’s will provides that his interest in the house is left to the trustees on trust on the basis that Mrs Bell can live in it as her personal residence so long as she wishes free of charge but paying all rates and outgoings and keeping it in repair. At the
request of Mrs Bell, the trustees can sell the house and buy another one, including an

1 High Court Rules, r 15.9.

interest in a retirement village and the provisions of the trust apply to any such new property. When the trust ends, the house, or any new property, will form part of the residuary estate, the income from which is paid to Mrs Bell during her lifetime and then divided between the children equally. The will specifically provides that the proper maintenance of Mrs Bell is to take preference over the interests of the residuary beneficiaries.

[7] Mrs…

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 Bell v Bell

Details

AGLC: Bell v Bell [2016] NZHC 1589
Case: [2016] NZHC 1589
Decision Date: 13 July 2016

CaseChat Overview and Summary

Shirley Viner Bell applied to the High Court for the removal of her daughter, Maxine Wendy Bell, as a trustee of the estate of Donovan Bell, her late husband. The application was unopposed, and the matter proceeded by way of formal proof. Mr Bell passed away on 4 April 2009, leaving his half share in the family property, a house in Tauranga, to the estate. His will appointed Mrs Bell, the respondent, and Linda Williamson as trustees and executors. Mrs Bell sought the removal of the respondent, who she claimed was estranged from the other trustees and refused to engage in decision-making regarding the house, which Mrs Bell wished to sell. Mrs Bell also sought to have the respondent replaced with another of her daughters, Adrienne Chalada.

The court had to decide whether the respondent should be removed as a trustee of the estate, and if so, whether a replacement trustee should be appointed. The court considered the evidence from the affidavits of Ms Williamson and Mrs Bell, which revealed the respondent's aggressive and erratic behaviour in her interactions with them. The court was satisfied that the respondent had not properly applied herself to her duties as trustee and that her removal was necessary to ensure the proper execution of the trust and safeguard the welfare of the beneficiaries.

The court also had to determine whether a replacement trustee should be appointed. The court found that, although the administration of Mr Bell’s estate had concluded, the applicant sought only orders under the Trustee Act. The court decided that it was appropriate to appoint a replacement trustee to ensure the proper administration of the trust.

The court removed the respondent as a trustee under s 51 of the Trustee Act and replaced her with Adrienne Chalada, as requested by the applicant. There was no order as to costs.

Orders