Bird v Bird - [2017] NZHC 1612

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2017-409-000130 [2017] NZHC 1612

IN THE MATTER
OF THE ESTATE OF THE LATE BRIAN

JAMES BIRD

BETWEEN

DAVID ANDREW BIRD, PHILIP ANTONY BIRD AND ALLEN ROGER BIRD Applicants

AND

GEOFFREY JAMES BIRD Respondent

Hearing:
14 June 2017

(By way of telephone link with Respondent who was in
Brisbane, Australia)

Appearances:

J M Moran for Applicants
Respondent Self-Represented

Judgment:

12 July 2017

JUDGMENT OF GENDALL J

Introduction

[1] Brian James Bird (the deceased) died at Kaitaia aged 81 on 25 November 2016.

[2] The deceased had five adult sons who survived him. These sons are the applicants David Andrew Bird (David), Philip Anthony Bird (Philip), Allen Roger Bird (Allen), the respondent Geoffrey James Bird (Geoffrey) and Graeme Michael Bird (Graeme). The deceased had been separated from his late wife Beverley, the mother of the five boys, for some time prior to her death in 2010.

[3] A little over three months before his death the deceased made his last will. The will which was dated 12 August 2016 (the will), provided first, that the respondent,

BIRD & ORS v BIRD [2017] NZHC 1612 [12 July 2017]

Geoffrey, was appointed his executor and trustee, and secondly, that the deceased’s net residuary estate, which had an estimated value of about $300,000, was to be divided equally amongst the five sons, after repayment to his son Graeme of a loan of $30,000. The will included as a specific provision at para [6] the following:

6.I EXPRESS THE WISH that my body be buried next to my late wife BEVERLEY at Victoria Valley Cemetery. If this is not possible then I EXPRESS THE WISH to be buried at my reserved plot I Waipapakauri Cemetery. Either way, I EXPRESS THE WISH that my said late wife’s headstone be amended to replace “partner of Dick” with “wife of Brian”.

[4] In this proceeding, the applicants David, Philip and Allen seek an order removing Geoffrey as the executor and trustee of the deceased’s estate and appointing the New Zealand Guardian Trust Company Ltd (trading as Perpetual Guardian) in his place.

[5] Removal of Geoffrey is sought pursuant to either s 21 of the Administration Act 1969, or alternatively pursuant to s 51 of the Trustee Act 1956 and under the inherent jurisdiction of the Court.

[6] The application is opposed by Geoffrey. It seems also from an affidavit sworn

26 May 2017 and filed on 8 June 2017 from his brother Graeme, that effectively he supports Geoffrey’s position and also opposes the present application.

Grounds for application

[7] In the present application before the Court to remove Geoffrey as executor and trustee of the deceased’s will, specified grounds are outlined as follows:

2. (f) In correspondence with the applicants Geoff has said, inter alia, that he may “dock” the shares of the applicants in the estate arbitrary amounts that he will determine, including in respect of exemplary damages, such that some or all of the applicants will receive nothing…

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 Bird v Bird

Details

AGLC: Bird v Bird [2017] NZHC 1612
Case: [2017] NZHC 1612
Decision Date: 12 July 2017

CaseChat Overview and Summary

Bird v Bird is a case concerning the estate of Brian James Bird, who passed away in November 2016. The case involves five adult sons of the deceased, with the applicants being David Andrew Bird, Philip Anthony Bird, and Allen Roger Bird, and the respondent being Geoffrey James Bird. The applicants seek the removal of Geoffrey as the executor and trustee of their father's estate, and the appointment of The New Zealand Guardian Trust Company Ltd (trading as Perpetual Guardian) in his place. The applicants argue that Geoffrey has acted inappropriately and has threatened to reduce their shares in the estate.

The legal issues in this case revolve around the applicants' request to remove Geoffrey as the executor and trustee of the deceased's estate and to appoint The New Zealand Guardian Trust Company Ltd (trading as Perpetual Guardian) in his place. The applicants base their request on Section 21 of the Administration Act 1969, Section 51 of the Trustee Act 1956, or the inherent jurisdiction of the Court.

The Court found that Geoffrey had made threats to reduce the applicants' shares in the estate, levied "exemplary damages," and showed questionable judgment in delaying the application for probate and the settlement of the estate's house sale. The Court also found that Geoffrey had a history of attempting to mount unmeritorious legal crusades, some of which had resulted in him being declared a vexatious litigant. The Court concluded that Geoffrey's actions had caused significant hostility between him and the applicants, which prejudiced the interests of all the beneficiaries. The Court found it expedient to remove Geoffrey as executor and trustee of the estate and to appoint The New Zealand Guardian Trust Company Ltd (trading as Perpetual Guardian) in his place.

In conclusion, the Court granted the applicants' request to remove Geoffrey as the executor and trustee of the deceased's estate and appointed The New Zealand Guardian Trust Company Ltd (trading as Perpetual Guardian) in his place. The Court found that Geoffrey's actions had caused significant hostility between him and the applicants, which prejudiced the interests of all the beneficiaries. The Court emphasized the importance of properly administering the estate and ensuring the welfare of all beneficiaries.

Orders