Eriksen v Lemoto - [2022] NZHC 256

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-734

[2022] NZHC 256

UNDER Sections 21 and 44 of the Administration Act 1969

IN THE MATTER

of an application to remove an executor from office and ancillary orders

BETWEEN

KAREN ANN ERIKSEN

Applicant

AND

ZEEPRA ERNA LEMOTO

Respondent

Hearing: On the papers

Appearances:

B J J Sheehan for the Applicant

Judgment:

23 February 2022

JUDGMENT OF COOKE J

[1] By notice originating application dated 3 December 2021 the applicant, Ms Karen Eriksen applies for an order removing the respondent Ms Zeepra Lemoto (her half-sister) as administrator of the estate of Ms Ann Kidd (their mother) and replacing her with Perpetual Trust Ltd. The application is supported by an affidavit from Ms Eriksen. Leave has been granted for the proceedings to be brought by way of originating application.

[2] The proceedings were first addressed by Edwards J on 8 December 2021. At that stage the Court gave directions that the applicant’s siblings, who are the other primary beneficiaries of the estate, be served with the proceedings.

ERIKSEN v LEMOTO [2022] NZHC 256 [23 February 2022]

[3] In addition by interlocutory application without notice dated 17 December the applicant applies for orders for substituted service. This further application is supported by Ms Erikson’s affidavit, and three further affidavits from staff from the applicant’s solicitors who describe the attempts to make contact with the respondent. It is also supported by an affidavit from a process server who describes his attempts to serve the application on the respondent, including an occasion where a person who he believed to be the respondent refused to take the document he was seeking to serve. He indicates that he left documents at her feet and told her that she had been served. This occurred at the property which I further describe below on 17 December 2021.

[4] The proceedings were further called before me in the Judge’s Chambers List on 25 January 2022. At that stage it was noted that the respondent had not taken any steps. I directed that the matter be adjourned to see if any opposition would be filed. I also directed that the applicant provide the Court with updating information as to the stance of the applicant’s siblings on the application. If no opposition was filed I indicated I would determine the matter on the papers.

[5] By memorandum dated 27 January 2022 counsel for the applicant has provided information that satisfies me that each of the siblings do not object to the application.

[6] On the basis of the evidence filed in relation to the application for substituted service I accept that such orders are appropriate and I make them as sought in the application. The applicant has made concerted efforts to formally serve the application, the respondent has avoided service, and I am satisfied that she can be treated as being on notice that proceedings have been commenced and efforts have been made…

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 Eriksen v Lemoto

Details

AGLC: Eriksen v Lemoto [2022] NZHC 256
Case: [2022] NZHC 256
Decision Date: 23 February 2022

CaseChat Overview and Summary

Karen Ann Eriksen has applied to the High Court of New Zealand to remove Zeepra Erna Lemoto as the executor of the estate of their late mother, Ann Kidd. This application comes after Lemoto, Eriksen's half-sister, was appointed as the executor in August 2019 following Kidd's death in December 2018. The estate is modest, comprising bank accounts and a residential property in Lower Hutt. The application includes a request for substituted service due to Lemoto's refusal to accept service of the application. The court found that the efforts made to serve Lemoto were sufficient to deem her as having notice of the proceedings.

The primary legal issue before the court was whether Lemoto should be removed as the executor of the estate due to her failure to properly administer it. The court considered the proper administration of the estate and the interests of the beneficiaries, which include the lack of communication from Lemoto, the poor condition of the estate's property, and the failure to manage the estate's assets. The court's discretion to remove an executor is guided by the need for the estate to be properly administered and the interests of the beneficiaries, which may include considerations of suitability, practicality, and efficiency, without requiring misconduct or breach of trust.

The court found that Lemoto had not taken any meaningful steps to administer the estate, the property was in a deteriorated state, and communication attempts had failed. The other beneficiaries did not oppose the application. Given these circumstances, the court concluded that the removal of Lemoto as executor was appropriate. The court also noted that while an order for an inventory and account from Lemoto was not made due to doubts about compliance, this decision was without prejudice to any future applications by the new executor. The court ordered that the costs of the application be borne by Lemoto personally.

Orders