DAVID THOMAS CHRISTOPHER RICHARD THOMAS AND MICHAEL ROBERT GARNHAM - [2024] NZHC 3028

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-000624

[2024] NZHC 3028

UNDER s 21 of the Administration Act 1969 and Part 19 of the High Court Rules 2016

IN THE MATTER OF

the estate of Yvonne Thomas

BETWEEN

DAVID THOMAS

First Applicant

CHRISTOPHER RICHARD THOMAS
Second Applicant

AND

MICHAEL ROBERT GARNHAM

Respondent

On the papers:

Counsel:

D M Fraundorfer for Applicants

Judgment:

16 October 2024

JUDGMENT OF GRAU J

[1] The applicants in this matter, Messrs David and Christoper Thomas,1 apply to remove and replace the respondent, Mr Michael Garnham, as the executor of the estate of Yvonne Thomas under s 21 of the Administration Act 1969. Mrs Thomas was the mother of David and Christopher, who are among the beneficiaries of her estate. They also seek permission to commence this proceeding by way of originating application (which is required in this case), and they seek directions for service.

1 For ease of reference, I will refer to them by their first names.

THOMAS v GARNHAM [2024] NZHC 3028 [16 October 2024]

Background

[2] Mrs Thomas passed away on 5 March 2023. She had four children; David, Christopher, Nigel, and Deborah. She left behind a final will dated 1 July 2021 (the Will). Under the Will, Mr Garnham and Ms Jill Masters (Mrs Thomas’ sister) were the appointed executors. There were specific gifts of $200,000 to Nigel for the purchase of a property, and $100,000 to go to David. Nigel was to receive Mrs Thomas’ home and chattels at the time of her death. The residue of the estate was to be divided between the four children in equal shares, after payment of the estate’s debts and expenses. Mrs Thomas also left specific wishes regarding a family headstone. The estate itself was small, comprising a property in Paraparaumu (the Property), bank accounts, a car, and chattels and personal items.

[3] On 14 March 2023, Ms Masters renounced her executorship. Mr Garnham applied for probate of the Will in his sole name. Probate was granted on 7 July 2023. The Property was then sold for $925,000, and the gifts were distributed to Nigel and David.

[4] However, the estate has still not been wound up. The applicants say that the residuary beneficiaries have not received their distributions and the wishes regarding the family headstone have not been complied with, despite more than 12 months passing since the grant of probate.

[5] It appears that Mr Garnham has advised the beneficiaries the estate will not be wound up unless, and until, the beneficiaries sign a Deed of Indemnity and Release, which the applicants say would result in over $90,000 in estate funds being held back for the purpose of Mr Garnham’s fees and estate expenses. The applicants say that, despite numerous requests for information, Mr Garnham has not explained why such an amount is required to meet his likely fees and costs.

[6] The relationship between the applicants and Mr Garnham…

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.

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Details

Case: [2024] NZHC 3028
Decision Date: 16 October 2024

CaseChat Overview and Summary

The case involves the applicants, David and Christopher Thomas, seeking to remove Michael Garnham as the executor of their mother's estate and to replace him with Nicola Scott. The dispute arises from the administration of the estate of Yvonne Thomas, who passed away on 5 March 2023, leaving a will appointing Mr Garnham and Ms Jill Masters as executors. The applicants contend that Mr Garnham has failed to administer the estate properly, has not been transparent about his fees, and has acted in a manner that has led to a breakdown of trust and confidence. The High Court of New Zealand was tasked with determining whether the applicants' proceeding could be initiated via an originating application, which is not explicitly mentioned in the High Court Rules 2016 but permitted if it serves the interests of justice.

The court considered whether the proceeding could be appropriately commenced via an originating application given the nature of the claims and the need for justice, speed, and economy in the proceedings. It was determined that while there were some complex family dynamics and issues regarding the drafting of the will, the primary legal and factual issues were confined and could be adequately addressed through an originating application. The court also assessed the necessity of statements of claim and defence, the need for interlocutory procedures, the straightforward nature of the application, and the number of parties involved. The court concluded that the proceeding was suitable for the originating application procedure due to the relatively straightforward nature of the claims and the availability of affidavits and documentary evidence.

The court granted leave for the proceeding to be handled as an originating application, required the applicants to provide a copy of the Deed of Indemnity, directed the service of the originating application and supporting documents on relevant parties, set a timeframe for Mr Garnham to file any opposition, and scheduled a further directions hearing. This decision ensures that the matter progresses efficiently while considering the applicants' concerns about the administration of the estate.

Orders