Brown v Brown - [2023] NZHC 1552

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-788

[2023] NZHC 1552

UNDER the Administration Act 1969

IN THE MATTER

of the Estate of KATHLEEN NORMA BROWN

BETWEEN

STEVEN FRANCIS BROWN, CHERYL MOANA MARIA ALLAN, ERROL AMBROSE BROWN and MATTHEW JOHN BROWN

Applicants

AND

WILLIAM MOSES BROWN

First Respondent

REBECCA TAKIMOANA

Second Respondent

Hearing: 15 June 2023

Appearances:

H Davies for the Applicants

Judgment:

15 June 2023

ORAL JUDGMENT OF BECROFT J

Solicitors:
Shine Lawyers, Auckland, hdavies@shinelawyers.co.nz

BROWN v BROWN [2023] NZHC 1552 [15 June 2023]

Application

[1] This is an application for removal of the current executor and trustee in the estate of Kathleen Norma Brown and the appointment of Trustees Executors Limited (TEL) as replacement executor and trustee, together with further relief.

[2] The matter has come to me in the Duty Judge List. It raises some issues which, as I set out, require careful reflection.

[3] In summary, the application for removal of the current executor and trustee and appointment of a replacement executor and trustee is made out and is granted. However, the “further relief” in terms of four further orders sought by the applicants should be adjourned for six weeks so that the newly appointed independent trustee can fully examine and assess the situation.

Background

[4] Kathleen Norma Brown (Ms Brown) died on 19 January 2021. Her husband predeceased her by about a year. They were separated.

[5]Ms Brown was survived by eight children.

[6] Probate of Ms Brown’s Will was granted on 10 March 2024. One of her children, William Moses Brown (William), was appointed as the executor of his mother’s estate.

[7] William is also the administrator of his father’s estate – that is Ms Brown’s husband.

[8] The eight children have effectively divided into two camps. On the one hand the four applicants. On the other, William (the executor and trustee of his mother’s Will), Rebecca Takimoana who has occupied the Brown’s property at 18 Resolute Way, Papakura for over 20 years, and the two other of Ms Brown’s children, Carol Ann Brown and Gloria Rose Brown.

[9]Resolute Way is by far the major asset in Mrs Brown’s estate.

[10] As far as is known, there are no cash or other assets in Mrs Brown’s estate. Resolute Way will, therefore, have to be sold if the eight beneficiaries are to receive their share of the estate.

[11] There have been a considerable number of meetings to try to resolve the distribution of Mrs Brown’s estate and much correspondence.

[12] In short, the four applicants want Resolute Way sold. The other four seem opposed to the sale. Indeed, there is a suggestion in the affidavit of Steven Francis Brown, one of the applicants, that William may have granted a tenancy at $300 a week to Rebecca Takimoana, his sister, to continue living in the property at 18 Resolute Way. The level of the rent is said to…

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 Brown v Brown

Details

AGLC: Brown v Brown [2023] NZHC 1552
Case: [2023] NZHC 1552
Decision Date: 15 June 2023

CaseChat Overview and Summary

The High Court of New Zealand heard an application by four of Kathleen Norma Brown's children to remove William Moses Brown, their brother, as the executor of their mother's estate and to appoint Trustees Executors Limited as his replacement. The application also sought several further orders, including an order to sell the property at 18 Resolute Way, Papakura, Auckland, and to terminate any tenancy that might exist there. Kathleen Norma Brown died on 19 January 2021, leaving behind eight children. Probate of her will was granted on 10 March 2021, and William was appointed as the executor of her estate. The family is divided into two camps, with the four applicants wanting the property sold and the other four, including William, seemingly opposed to the sale. The applicants argued that William had been negligent or had not made any decision regarding the estate, and that the situation had caused a stalemate, with no progress made over two years since their mother's death.

The court was required to decide whether William should be removed as the executor of the estate and replaced by Trustees Executors Limited, and whether the further orders sought by the applicants should be granted. The court considered the principles that should guide it in dealing with an application to remove an administrator, as set out in Tod v Tod and Farquhar v Nunns. The court also considered the urgency of the situation, given the serious illnesses faced by two of the applicants. The court held that it was expedient to remove William as the executor of the estate and to appoint Trustees Executors Limited as his replacement. However, the court was reluctant to make any orders regarding the further applications at that time, given the suggestion that a legal tenancy might be in place for the second respondent, Rebecca Takimoana. The court adjourned the further applications for six weeks to allow the newly appointed independent trustee to assess the situation.

The court ordered the removal of William Moses Brown as the executor and trustee of the estate of Kathleen Norma Brown and appointed Trustees Executors Limited as his replacement. The court adjourned the further applications for six weeks, to be placed before the Duty Judge for final decision as to whether the orders sought should be made.

Orders