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 DefendantJudgment:
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…
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- Boyd v Connolly [2015] NZHC 2884
- Case
- [2015] NZHC 2884
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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