Estate of Ellett

[2019] NZHC 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1619

[2019] NZHC 2013

UNDER	The Trustee Act 1956
IN THE MATTER	of the Estate of Trevor Robert Ellett
BETWEEN	An application by KARL RICHARD MORETON as trustee and executor of the Estate of Trevor Robert Ellett

On the papers:	at Auckland
Judgment	22 August 2019

JUDGMENT OF POWELL J

[Order discharging Executor from the office of Administrator and appointing executor in his place

This judgment was delivered by me on 22 August 2019 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Application (Estate of Ellett) for order discharging executor [2019] NZHC 2013 [22 August 2019]

[1]                 The present application is made by Karl Moreton as a trustee and executor of the Estate of Trevor Robert Ellett. Mr Moreton has applied for orders replacing the other current trustee and executor, as well as various ancillary procedural orders to enable this to occur.

[2]                 The application is necessary because, while originally there were three executors and trustees appointed  including  Mr  Moreton,  one  of  the  others  (Stuart Callender)  has  passed  away  and  the  other  remaining   administrator,  Noel Johnston, has sought to terminate his responsibilities as a result of a serious medical condition.

[3]                 The proposed administrator to replace Mr Johnston is Penny Jones, a solicitor and partner at Wynyard Wood solicitors in Auckland. Ms Jones has confirmed she is willing to accept appointment and it is noted she is already familiar with the file as Mr Callender was from the same firm and Wynyard Wood has acted for Mr Ellett and/or the estate for many years. Mr Ellett had in fact confirmed by codicil in 2012 that if Mr Callender was unwilling or unable to act then he wished the partners of Wynyard Wood to be the executors and trustees of his will, and the present application is therefore in accordance with those expressed wishes.

[4]                 The supporting documentation makes it clear that the originating application process is appropriate, and that the application has already in fact been served on all significant beneficiaries; being the four surviving children of Mr Ellett; the daughter of the one deceased child of Mr Ellett (Anna Ellett); and the two major beneficiaries of the estate. All but one of these have confirmed consent to the orders sought, with only Ms Ellett, who resides overseas, not responding to the notification.

[5]                 In the circumstances, I have no hesitation in concluding the orders are necessary and appropriate and make them as follows:

(a)leave is granted to proceed under r 19.5 of the High Court Rules 2016 in relation to the Application for Discharge of Noel William Johnston as an Administrator and for appointment of Penny Louise Hughes Jones

as a further person to be administrator in his place under s 21 of the Administration Act 1969;

(b)that the service and appointment of representation of this proceeding be dispensed with on the basis that seven of the eight major relevant parties of interest consent to the application in [5](a) above;

(c)that Noel William Johnston, of Paraparaumu, retired farmer, one of the executors named in the will of the deceased and to whom probate was granted by this Court on 5 December 2016, be discharged from the office of administrator; and

(d)that Penny Louise Hughes Jones of Auckland, solicitor, be appointed administrator of the estate of the deceased in his place.

Powell J