Boyd v Connolly - [2015] NZHC 2884

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-485-603154 [2015] NZHC 2884

IN THE MATTER
of an application for Probate in Solemn

Form

IN THE MATTER

of the Estate of Fiona Marie Duncum

BETWEEN

KAREN MICHELLE BOYD Plaintiff

AND

SEAN CONNOLLY Defendant

Hearing: 16 November 2015

Appearances:

J Hunter for the Plaintiff
K E Swading for the Defendant

Judgment:

19 November 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 19 November 2015 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Glaister Ennor, Auckland.
Agmen-Smith and Co, Auckland.

BOYD v CONNOLLY [2015] NZHC 2884 [19 November 2015]

[1] These proceedings involve competing applications for the administration of the estate of Fiona Marie Duncum. The plaintiff, Karen Boyd, and the defendant, Sean Connolly, are the two executors and trustees named in the will.

[2] By her statement of claim, Ms Boyd sought appointment as the sole executrix and trustee. Shortly prior to the hearing she changed her position and claimed that she should remain as executor and trustee and Mr Connolly should be replaced by a named Auckland lawyer.

[3] In his statement of defence, Mr Connolly opposed the application. He did not accept that there was a conflict of interest in his role as executor and trustee despite the fact that he and Ms Duncum had been in a relationship to which the Property (Relationships) Act 1976 (the PRA) applied, and their relationship property had not been settled at the time of Ms Duncum’s death. Mr Connolly sought the appointment of an independent executor and trustee.

[4] Closer in time to the hearing, Mr Connolly accepted the potential for a conflict in representing the estate in any resolution of the relationship property interests. His preferred position is that both executors should be replaced with his fallback position being that he should be replaced with an independent executor.

Background

[5] Ms Duncum died at Auckland on 10 December 2013. She is survived by her three children (children), Amanda now aged 23, Tadhg, now aged 18, and Ciara, now aged 15.

[6] Ms Boyd was a long standing and close personal friend of Ms Duncum.

[7] Mr Connolly is the former de facto partner of Ms Duncum. He is the father of Tadhg and Ciara and the step father of Amanda.

[8] Ms Duncum and Mr Connolly separated in April 2013. Prior to her death she and Mr Connolly shared the care of the children and in were negotiations regarding their relationship property.

The will

[9] Ms Duncum’s will is dated 27 September 1998. It appoints Mr Connolly and

Ms Boyd as executors and trustees.

[10] All Ms Duncum’s personal chattels and the whole of the interest in her

principal residence owned by her at the date of her death were left to Mr Connolly.

[11] The remainder of the estate after payment of debts was to be paid to the FMD Family Trust (the Trust).

[12] Despite raising with…

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 Boyd v Connolly

Details

AGLC: Boyd v Connolly [2015] NZHC 2884
Case: [2015] NZHC 2884
Decision Date: 19 November 2015

CaseChat Overview and Summary

In Boyd v Connolly, the High Court of New Zealand considered competing applications for the administration of the estate of Fiona Marie Duncum. Karen Michelle Boyd and Sean Connolly, both named as executors and trustees in Duncum's will, found themselves in conflict over the management of the estate. Boyd initially sought to be appointed as the sole executrix and trustee but later sought to replace Connolly with another named Auckland lawyer. Connolly opposed Boyd's application and sought the appointment of an independent executor and trustee, citing potential conflicts of interest arising from his ongoing relationship property negotiations with Duncum. The court had to decide whether to remove Boyd and Connolly as executors and trustees and appoint an independent administrator.

The court assessed several factors, including the welfare and interests of the beneficiaries, potential hostility between the executors, and the existence of any special circumstances that might justify bypassing the named executors. The court found that the interests of the beneficiaries, particularly the children, were best served by appointing an independent administrator to avoid escalating hostility between Boyd and Connolly. The court also noted that Connolly should step down due to potential conflicts of interest relating to the relationship property proceedings. Given the circumstances, the court concluded that appointing an independent administrator was expedient and in the best interests of the children.

The court appointed Catherine Atchison, a solicitor from Martelli McKegg in Auckland, as the independent administrator. The court found her to be an appropriate choice due to her experience in trusts and estates, her willingness to accept the appointment, and her understanding of the issues involved. The court ordered that Boyd and Connolly be removed as administrators of the will and that Atchison be appointed in their place. The costs of the proceedings were to be borne by the estate.

Orders