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…

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: [2025] NZHC 966
Decision Date: 23 April 2025

CaseChat Overview and Summary

Ian McKinstry applied for an order to remove himself as executor and trustee of Scott Jackson's estate, and for John Anthony Langford and Paul Hiram Maxim to be appointed as the new executors and trustees. Jackson's daughters, Amy and Freja, consented to this arrangement. The application was made under section 21 of the Administration Act 1969 and sections 112 and 114 of the Trusts Act 2019. The court needed to determine whether it was expedient to replace McKinstry as executor and trustee, considering the interests of the beneficiaries. The court also needed to decide whether it was appropriate to appoint Langford and Maxim as the new executors and trustees.

McHerron J found that the application was routine and non-contentious, as all affected parties consented to the proposed changes. The court accepted that McKinstry had resolved significant issues concerning the estate, including tax and relationship property issues. The daughters believed their interests would be better served by the new executors and trustees, who were based in Wellington and had relevant expertise. The court concluded that replacing McKinstry was in the best interests of the beneficiaries. Therefore, McKinstry was removed as executor and trustee, and Langford and Maxim were appointed in his place. The court also ordered that the assets and liabilities of the estate vest in the new executors and trustees and that the reasonable costs of Langford's duties be payable from the estate.

Orders