Curtis v Ancell

[2015] NZHC 381

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV2013-476-000138 [2015] NZHC 381

BETWEEN

TAMARA SHOANNA CURTIS

Applicant

AND

KEVIN JOHN ANCELL Respondent

AND

EDITHA LIMARCO ANCELL Second Respondent

Hearing:	6 March 2015 (By way of AVL)
Appearances:	C O'Connor for Applicant G E Keenan for Second Respondent
Judgment:	6 March 2015

ORAL JUDGMENT OF DUNNINGHAM J

[1]      The  applicant  is  the  daughter  of  Raymond  Alfred  Ancell  who  died  on

30 November  1993.   After  the  applicant’s  mother  died,  her  father  (the  testator)

married Editha Limarco Ancell.  On the testator’s death, probate of his last will dated

20 May 1992 was granted by the High Court on 10 February 1994.

[2]      The testator’s will appointed his brother, Kevin John Ancell and his wife Editha Limarco Ancell as executors of his estate.  The principal asset of the testator’s estate is the former family home at 27 Craigie Avenue, Timaru.   That asset has recently been valued at approximately $400,000.

[3]      The   beneficiaries   of   the   estate   are   the   testator’s   five   children   and

stepchildren. Two have since deceased but are survived by their children.

[4]      Under the terms of the testator’s will, his widow, Editha, is granted a life interest in the house.  However, Editha has not resided in the house since early 1994.

CURTIS v ANCELL AND ANOR [2015] NZHC 381 [6 March 2015]

She is presently residing in a Timaru rest home and unfortunately has dementia. Mr McGlashan   was   appointed   as   litigation   guardian   of   Editha   Ancell   on

22 April 2013.

[5]      The  beneficiaries  are  concerned  that  the  house  has  not  been  able  to  be maintained and has deteriorated and consider the house should now be sold and that Editha should be paid a sum in satisfaction of her life interest and the balance distributed to the remaining residuary beneficiaries.

[6]      The  current  application  seeks  orders  to  effect  those  actions.    Orders  for service of the application were made on 19 December 2013 and proof of service has been provided to the Court.   None of the beneficiaries have elected to actively participate in the proceedings and I have a memorandum from the litigation guardian confirming the appropriateness of the property being sold and steps being taken to calculate Editha’s life interest and then pay the balance to the residuary beneficiaries.

[7]      Today, Mr O’Connor for the applicant has sought an order directing the property at 27 Craigie Avenue, Timaru be sold and for the proceeds to be held in trust, pending a final resolution regarding the calculation of the widow’s life tenancy interest.  The litigation guardian has suggested that that be calculated in accordance with the life expectancy tables in the Estate and Gift Duties Act and discussions, I understand, will proceed to determine whether that is the appropriate basis for calculation.

[8]      Accordingly, in reliance on the affidavit of the applicant and the various memoranda that counsel have filed, I order:

(a)       the sale of the property at 27 Craigie Avenue, Timaru being Lot 1, DP 40331 and comprised in certificate of title CB18B/1427;

(b)the  payment of the costs of and incidental to the sale of the property may be made on the sale of the property;

(c)      the net sale proceeds of the property are to be held on Trust, pending resolution of the calculation of Editha Limarco Ancell’s life interest in the property;

(d)once  the  value  of  the  life  interest  of  Editha  Limarco  Ancell  is calculated, the sale proceeds of the property are to be distributed by paying:

(i)the  sum  calculated  to  be  the  value  of  the  life  interest  of Editha Limarco Ancell in the estate of Raymond Alfred Ancell to her;

(ii)the reasonable costs incurred by John Robert McGlashan as the litigation guardian for Editha Limarco Ancell; and

(iii)     the  balance  to  the  residuary  beneficiaries  of  the  estate  of

Raymond  Alfred  Ancell  in  accordance  with  his  will  of

20 May 1992, probate of which was granted on 10 February

1994.

[9]      I also order that the costs of and incidental to this application are to be fixed on a 2B basis and are costs in the cause.

Solicitors:

Gresson Dorman & Co., Timaru

RSM Law, Timaru