EDWARD JOHN SHANLY AND PATRICIA MARY SHANLY as trustee and executor of the estate of TONY JOSEPH SHANLY

[2025] NZHC 2006

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2709

[2025] NZHC 2006

BETWEEN

EDWARD JOHN SHANLY

Plaintiff

AND

PATRICIA MARY SHANLY as trustee and executor of the estate of TONY JOSEPH SHANLY

Defendant

Hearing:

17 July 2025

Counsel:

L W Dixon for the Plaintiff

N P Tetzlaff for the Defendant

Judgment:

21 July 2025

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 21 July 2025 at 12 midday.

Pursuant to Rule 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Solicitors/Counsel:

Paterson Hopkins Lawyers, Auckland Smith and Partners, Auckland

SHANLY v SHANLY [2025] NZHC 2006 [21 July 2025]

Introduction

[1]    The plaintiff, Edward Shanley (Edward),1 and the defendant, Patricia Shanley (Patricia), are two of the children of Anne Shanley who died in 2018 (Mrs Shanley). Perpetual Guardian is the executor. Mrs Shanley was survived by two more of her children, Tony Shanley (Tony) and Christina Shanley (Christina).

[2]    Mrs Shanley left her estate to her surviving children in equal shares. Issues arose with administration of the estate. Christina died on 17 March 2020. Edward is the administrator of Christina’s estate. On 4 December 2020, Edward, Tony and Patricia executed a deed of family arrangement (the deed). The deed provides for the distribution of Mrs Shanley’s estate and Christina’s estate.

[3]    Tony died on 5 December 2020. Patricia is his executor. Issues arose between Edward and Patricia regarding implementation of the deed. In this proceeding, Edward applies for an order that certain provisions of the deed be performed. Patricia agrees that the deed is binding and that an order for specific performance is appropriate. The terms of orders for specific performance are resolved in this judgment.

Background

[4]The significant assets comprised in Mrs Shanley’s estate are:

(a)A property on St Stephens Avenue in Parnell (St Stephens). Counsel for Edward, Mr Dixon, advised the Court that he has recently learned that the property has now been transferred to Patricia, as to a half-interest in her own right and a half-interest as executor for Tony’s estate. That transfer is uncontentious and in accordance with the deed.

(b)The proceeds of sale of a property on Avenger Place in Glendene (Avenger Place). Under the deed, the proceeds of sale shall be transferred to Patricia and Tony’s estate in equal shares.

1      I use the parties first names to avoid confusion and mean no disrespect to them.

[5]    Mr Dixon advised the Court that Edward is not aware of any other significant assets or residue of Mrs Shanley’s estate, although there is no direct evidence from Perpetual Guardian.

[6]    Christina’s estate has been distributed, and there are no issues in respect of Christina’s estate.

[7]Clauses 8 and 9 of the deed deal with Tony’s estate:

8.          Tony covenants to leave and will make a will leaving all his estate and interest in:

(a)        his collection of kauri, rimu, totara and other timbers to Edward to be used (without imposing any trust) in accordance with the wishes which he has made known to Edward;

(b)        the Parnell Property and the Avenger Place Property (or the proceeds of sale thereof) and his Toyota Funcargo car to Patricia;

(c)        the Glen Eden Property to Edward and Patricia in equal shares;

(d)        the rest residue and remainder to Edward and Patricia in equal shares.

9.          In the event Tony does not leave a will in terms of clause 8 of this deed or if such will is for any reason held to be invalid or inoperative, the covenants made in clause 8 shall be specifically enforceable against his estate.

[8]    Tony did not make a new will. Patricia obtained probate of his existing will dated 26 April 2020. However, as noted above, Patricia acknowledges that Tony’s estate is bound by cls 8 and 9 of the deed.

[9]    The main asset in Tony’s estate is a property on Pleasant Road in Glen Eden (Pleasant Road). This is the property referred to as the Glen Eden property in the deed. The property is presently unoccupied and in a state of disrepair.

[10]   During 2021, Patricia and Edward communicated regarding the sale of Avenger Place. Edward and Patricia signed an agreement dated 19 February 2021 which purports to vary the distribution of the proceeds of sale of Avenger Place agreed in the deed. However, in his affidavit sworn on 24 October 2024 Edward confirms that he has waived any rights that he has under the agreement dated 19 February 2021,

and he confirms that Patricia is entitled to the full net proceeds of sale of Avenger Place in accordance with the deed.

[11]   In September 2023, Edward and Patricia communicated regarding a sale of Pleasant Road. They signed a memorandum dated 8 September 2023 which purports to vary and supplement the terms of the deed. In his affidavit, Edward confirms that he does not seek to enforce those terms.

[12]   Edward and Patricia now agree that cl 8 of the deed should be implemented according to its terms. However, there are other issues regarding Patricia’s administration of Tony’s estate:

(a)Patricia has not prepared an inventory of the estate’s assets and liabilities, and it is unclear to Edward whether there are any other assets in the estate, or to be called in by the estate, such as bank accounts or a share of the residue of Mrs Shanley’s estate.

(b)If there are no other significant assets, and no cash on hand to meet the expenses and liabilities of the estate, whether those expenses and liabilities should be born rateably by the parties receiving the specific bequests:

(i)Patricia is to receive a specific bequest of Tony’s share of the proceeds of sale of Avenger Place; and

(ii)Edward and Patricia are each to receive a half-share of Pleasant Road.

(c)If the expenses and liabilities should be born rateably, whether Pleasant Road must be sold.

The issue

[13]   Mr Dixon submits that the Court can order Patricia to take an inventory of Tony’s estate, and leave should be given to Edward to seek further orders if necessary.

[14]   Counsel for Patricia, Mr Tetzlaff, submits that the ancillary orders require a separate application under the Administration Act 1969 (the Act).

Analysis

[15]   Clause 8 of the deed is a contract to make a will. It is well established that the courts can enforce a contract to make a will by an order for specific performance.2 Clause 9 of the deed acknowledges that a remedy of specific performance is suitable in the present case.

[16]   The ancillary orders sought by Edward go beyond ancillary orders to enforce performance of the contract. The proposed orders relate to the administration of Tony’s estate.

[17]   Under s 44 of the Act, the High Court has jurisdiction to order an administrator to produce a verified inventory and account of an estate. The Court also has inherent jurisdiction to supervise administrators.

[18]   If the residue of Tony’s estate is insufficient to meet the costs and expenses of the estate, then s 37 of the Act applies:

37Liability of specific devise or bequest where estate primarily liable is insufficient

If any testator’s estate primarily liable for the payment of his or her debts is insufficient for that purpose, each of his or her specifically devised or bequeathed estates (if more than 1) shall be liable to make good the deficiency, in the proportion that the value of each of those estates bears to the aggregate value of the specifically devised or bequeathed estates of the testator.

[19]   If an administrator is unsure regarding the application of s 37, then the Court may give directions.3

[20]   The issues that have been raised regarding the administration of Tony’s estate are governed by the Act, and at present there is no application under the Act before the Court. Therefore, the Court does not presently have jurisdiction to make the ancillary

2      McCormack v Foley [1983] NZLR 57 (CA) at 75.

3      Section 4B of the Administration Act 1969 and the Trusts Act 2019.

orders sought.    If Edward wishes to pursue those orders, then he will need to commence a fresh proceeding.

[21]   During the hearing, counsel for Edward and counsel for Patricia confirmed that both parties agree to a declaration that the deed is binding on the parties, and that the parties are required to perform their obligations under cls 8 and 9 of the deed. I will make that declaration.

[22]   Regarding costs, both parties accepted my suggestion that costs should be reserved. It is appropriate for costs to be determined at the conclusion of any application brought by Edward under the Act. Hopefully that will not be necessary. If the parties can agree terms to complete the administration of Tony’s estate, then the issue of the costs on this proceeding can be brought on for hearing if necessary.

Orders

[23]   The plaintiff and the defendant shall perform their obligations under cls 8 and 9 of the deed dated 4 December 2020 between the parties and Tony Joseph Shanley (deceased).

[24]   Costs are reserved. Either party may call for a determination of costs by filing and serving a memorandum, which should be referred to me in chambers. I will then make directions for the filing of further submissions on costs, with a view to determining costs on the papers.

Associate Judge Brittain