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Crick v Wallace

Crick v Wallace

Case [2015] NZHC 2260 18 September 2015

Administrator Removal

Hostility Between Trustee and Beneficiary

Discretionary Jurisdiction

Wills, Trusts and Estates

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IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2011-476-690 [2015] NZHC 2260

BETWEEN
ROSEMARY LEE CRICK AND

JOHN HOWARD MCILRAITH AND IAN DAVID MCILRAITH

Plaintiffs

AND

JAMES LEYBOURNE WALLACE Defendant

Hearing: 13 and 14 July 2015

Appearances:

L Andersen for Plaintiffs
J Lovely for Defendant

Judgment:

18 September 2015

JUDGMENT OF MANDER J

[1] The plaintiffs, Rosemary Crick (Rosemary), John McIlraith (John) and Ian

McIlraith (Ian) (together the beneficiaries) are beneficiaries of their mother’s estate.1

They seek an order under the Administration Act 1969 (the Act) removing the defendant, James Wallace, as an administrator of the estate. Further ancillary orders relating to costs are also sought.

Background

[2] Alice and Bruce McIlraith (Mr and Mrs McIlraith) were a farming couple who had five children. These were the three plaintiffs, Rosemary, John, Ian, and two other sons, Robert and Donald. In the period between 1978 to 1980, well prior to Bruce McIlraith’s death in January 2001, various arrangements were made regarding
properties farmed by the family. A trust established in 1960, the Mount Parker Trust,

1 There are five beneficiaries under Mrs McIlraith’s will, including Robert and Donald, but, for
convenience, the plaintiffs, Rosemary, John and Ian are referred to as the beneficiaries. See [4].

CRICK & ORS v WALLACE [2015] NZHC 2260 [18 September 2015]

was dissolved. Robert was to farm Mount Parker in partnership with his father, and

Ian acquired another family farm, Grassy Hills.

[3] These arrangements gave rise to some division between family members, resulting in litigation. Subsequent steps taken during the parents’ lifetimes would result in further difficulties after the death of Mr McIlraith, and eventually flow through to the administration of Mrs McIlraith’s estate. I will refer to these events as necessary in the course of the judgment.

[4] Mrs McIlraith died in February 2011, leaving a will. Mr Wallace, a solicitor, and one of her sons, Robert, were appointed under the terms of the will as the administrators of her estate. Mrs McIlraith’s mental capacity declined in the years prior to her death, however, no issue arises as to the validity of her last will of June
2001. Mrs McIlraith divided her estate equally between her five children, and probate was granted in April 2011.

[5] The present proceeding sought removal of both administrators. As a result of a summary judgment application, Associate Judge Osborne ordered the removal of Robert in June 2012.2 In his stead, an Oamaru accountant, Ms Adair Craik, accepted appointment as a second trustee. After his removal as a trustee, Robert chose not to continue as a party, however, he gave evidence in his capacity as a person with an interest in the proceeding being a beneficiary of the estate. Robert does not agree
with his fellow beneficiaries’ application and favours leaving the completion of the administration of the estate to Mr Wallace and Ms Craik. Donald, who was originally a defendant in these proceedings, has received his entitlement from Mrs McIlraith’s estate and has been removed as a…

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 Crick v Wallace

Details

AGLC: Crick v Wallace [2015] NZHC 2260
Case: [2015] NZHC 2260
Decision Date: 18 September 2015

CaseChat Overview and Summary

This case involves an application for the removal of an administrator of an estate. The plaintiffs, Rosemary Crick, John McIlraith, and Ian McIlraith, are beneficiaries of their mother's estate, and they seek to remove the defendant, James Wallace, as an administrator of the estate. The legal issues in this case revolve around the jurisdiction of the court to remove a trustee and the factors that the court should consider in exercising that jurisdiction. The court found that it was expedient to remove Mr Wallace as an administrator of the estate due to the hostility between him and the beneficiaries, as well as the lack of progress in the administration of the estate. The court also ordered that a replacement administrator be appointed by the President of the Canterbury-Westland Branch of the New Zealand Law Society, provided that the candidate has at least 10 years of experience in estate administration. Lastly, the court held that Mr Wallace was not liable for costs when acting in his professional capacity as a trustee and administrator of the estate.

Orders