Estate of Jackson

[2025] NZHC 966

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-210

[2025] NZHC 966

UNDER

Section 21 of the Administration Act 1969, ss 112 and 114 of the Trusts Act 2019

IN THE MATTER

of the Estate of Scott Cameron Jackson

BETWEEN

IAN EDWARD McKINSTRY

Applicant

Hearing:

On the papers

Appearances:

L H Pratley for Applicant

D G Dewar and H K L Withers for Amy Maxim-Jackson and Freja Maxim-Jackson

Judgment:

23 April 2025

JUDGMENT OF McHERRON J

[1]                  Scott Jackson, who resided in Wellington, died on 20 May 2023. Probate of his will was granted on 11 August 2023.1

[2]Mr Jackson’s will provided for:

(a)the appointment of Mr Jackson’s friend, Mr Ian McKinstry, as executor and trustee; and

(b)the residuary estate to be held on trust for the benefit of Mr Jackson’s two daughters, Amy Maxim-Jackson and Freja Ingrid Maxim-Jackson until they attain the age of 25 years.

1      Re Scott Cameron Jackson CIV-2023-485-612080, 11 August 2023.

ESTATE OF S C JACKSON [2025] NZHC 966 [23 April 2025]

[3]                  Amy and Freja are now aged 19 and 18 years respectively and are accordingly adults within the meaning of s 9 of the Trusts Act 2019.

[4]Mr McKinstry seeks:

(a)an order removing him as executor and trustee of Mr Jackson’s estate, pursuant to s 21 of the Administration Act 1969 and s 112 of the Trusts Act.

(b)an order that John Anthony Langford and Paul Hiram Maxim be appointed as the executors and trustees of Mr Jackson’s estate pursuant to s 114 of the Trusts Act.

(c)an order that the assets and liabilities of the estate vest in John Anthony Langford, solicitor, and Paul Hiram Maxim in their capacity as the executors and trustees of Mr Jackson’s estate.

(d)that the reasonable costs of Mr Langford, arising from his duties as executor and trustee, are payable from the estate.

[5]The application is filed with the consent of all potentially affected parties.

[6]                  As set out in Mr McKinstry’s comprehensive affidavit in support of the originating application:

(a)At the date of Mr Jackson’s death, his estate had a gross value of about

$3 million, comprised mainly of two residential properties, an interest in the Government Superannuation Fund and bank accounts.

(b)Since Mr McKinstry’s appointment as executor, issues that were unresolved at the date of Mr Jackson’s death – relating to tax on income from one of the properties and the resolution of relationship property issues with Mr Jackson’s wife Esther Therese Maxim – have been resolved.

(c)There now remains in Mr Jackson’s estate one residential property, over

$1.1 million in cash, and chattels.

[7]                  Mr McKinstry helpfully provided the details of the resolution of relationship property issues which occurred following a mediation in Wellington on 27 January 2025. Based on the material provided, I am satisfied that the parties have reached agreement on all matters concerning relationship property at that mediation.

[8]                  At  or  around  the  time  of  that  mediation  the  parties  also   agreed  that Mr McKinstry would relinquish his role as executor and trustee of Mr Jackson’s estate. In his place, the replacement executors and trustees would be Mr Langford and     Mr Maxim.

Applicable law

[9]                  Under s 21(1) of the Administration Act the Court has jurisdiction to replace an administrator if it is expedient or if the administrator wishes to be replaced.

[10]              Under ss 112 and 114 of the Trusts Act, or in the Court’s inherent jurisdiction, the Court may remove and replace trustees when necessary or desirable.

[11]              It is usual for non-contentious proceedings involving the replacement of trustees to be dealt with as originating applications under pt 19 of the High Court Rules.2

[12]              In the present case, a change of trustees cannot be effected by deed under s 101 of the Trusts Act because the trust instrument (the will) does not include a power to change trustees and neither does it specify a minimum number of trustees.

[13]              The ultimate question in considering the replacement of trustees and executors is what is expedient in the interests of the beneficiaries.3 The replacement of

2      Wellwood v Wellwood [2019] NZHC 801 at [8]. However, in Jones v O’Keeffe [2019] NZCA 222, (2019) 24 PRNZ 529 at [51] the Court of Appeal noted that equivalent applications under the Trustee Act 1956 are generally required to be brought under pt 18 of the High Court Rules and that the originating application procedure is inappropriate if factual issues are in dispute or a trustee’s conduct is to be criticised.

3      Frickleton v Frickleton [2016] NZCA 408 at [33]; Tod v Tod [2015] NZCA 501 at [22].

Mr McKinstry as executor and trustee is driven by Mr Jackson’s daughters, Amy and Freja, who consider their interests as beneficiaries will be served by Mr McKinstry’s replacement by Mr Langford and Mr Maxim (an independent solicitor and a maternal uncle respectively) both of whom are based in Wellington. Amy and Freja have both given their consent to this replacement.

[14]              It appears that Mr McKinstry felt torn between wishing to continue fulfilling the wishes of Mr Jackson, who was his long-standing friend, in the role of executor and trustees and the best interests of the beneficiaries, his daughters. However he also recognises that the two principal issues concerning the estate have now been resolved through resolution of the tax issues and the relationship  property  issues  with  Esther Maxim. I accept Mr Pratley’s submission on behalf of Mr McKinstry that Esther Maxim is not affected by the outcome of the present application. Nevertheless, as Mr Pratley advises, he has been keeping her lawyer apprised of the application by providing her a copy of Mr Pratley’s memorandum and the other documentation as a courtesy.

My assessment

[15]              Having reviewed the thorough material put forward on behalf of Mr McKinstry by Mr Pratley I am satisfied that the application may be made without notice to any party. It relates to a routine matter, all affected parties consent to the orders sought, and requiring the applicant to proceed on notice would cause undue delay or prejudice to the beneficiaries of the estate.

[16]I make the following orders

(a)Ian McKinstry is removed as the executor and trustee of Mr Jackson’s estate.

(b)John Anthony Langford and Paul Hiram Maxim are appointed as the executors and trustees of the estate.

(c)The assets and liabilities of the estate vest in John Anthony Langford and Paul Hiram Maxim in their capacity as executors and trustees of the estate.

(d)The reasonable costs of Mr Langford arising from his duties as executor and trustee are payable from the estate.

McHerron J