Farquhar v Nunns

Case [2013] NZHC 1670


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-5188 [2013] NZHC 1670

UNDER  the Family Protection Act 1955 and the

Law Reform (Testamentary Promises) Act

1949

BETWEEN  HELEN MARGARET FARQUHAR Plaintiff

ANDVIKKI JANE NUNNS and HOLLY REBECCA CLARKE as trustees and executors of the estate of ROGER GORDON CLARKE (Deceased) First Defendants

SHIRLEY FLORENCE JEFFERY Second Defendant

Hearing:                   21 June 2013

Counsel:                  R D C Hindle for Plaintiff

B P C Carter for First Defendants (in personal capacity)

K A Muir for First Defendants (as executors and trustees) Appearance on behalf of Second Defendant excused

Judgment:                3 July 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 3 July 2013 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

FARQUHAR v NUNNS [2013] NZHC 1670 [3 July 2013]

The application

[1]      Ms Farquhar applies to remove Ms Nunns and Ms Clarke as executors and trustees (the administrators)1 of the estate of her late husband, Roger Gordon Clarke. She contends that there is a clear  conflict between their roles as  executors and trustees (on the one hand) and their personal financial interest as beneficiaries of the estate (on the other).  Public Trust is put forward as an independent substitute.

Background

[2]      Mr Clarke died at Auckland on 10 December 2011.   He had married Ms Farquhar  in  February  2004.    They  remained  married  at  the  time  of  his  death. Although  they  had  been  married  for  almost  nine  years,  Ms  Farquhar  received nothing of substance from his estate; at least, in the context of an estate having a net

value of something in the vicinity of $1,700,000.2

[3]      In  his  last  Will  made  on  26  April  2010,  Mr Clarke  appointed  his  two daughters from an earlier marriage, Ms Nunns and Ms Clarke, as executors and trustees of his estate.  Probate was granted in their favour, on 21 December 2011.

[4]      Under the Will, Ms Farquhar was released from liability in respect of loans, said to have been made to her by her husband.  In proceedings issued in the District Court of Queensland, Ms Farquhar retorts that the sum in issue was $100,000 and it was a gift.  Mr Clarke also assigned her a debt owed to him by Instant Interiors Gold Coast Pty Ltd, but no specific mention of that debt is made in the statement of assets and liabilities of the estate filed in this proceeding.  Ms Farquhar was also given a right to occupy the former family home in Queensland for one year, on condition that she pay all outgoings.

[5]      The residue of the late Mr Clarke’s estate was left to his daughters, Ms Nunns and  Ms  Clarke.    That  being  so,  for  all  practical  purposes  they  are  the  only

beneficiaries of the estate.

1      For convenience, I use the term “administrators” even though there is a clear difference between

the roles of executor and trustee.

2      Although the statement of assets and liabilities of the estate, set out in Ms Clarke’s affidavit…

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Farquhar v Nunns [2013] NZHC 1670
Case
[2013] NZHC 1670
Decision Date

CaseChat Overview and Summary

Helen Margaret Farquhar, the widow of the deceased, Roger Gordon Clarke, has applied for the removal of Vikki Jane Nunns and Holly Rebecca Clarke, the executors and trustees of the estate of her late husband, due to a perceived conflict of interest between their roles as administrators and their personal financial interests as beneficiaries. Public Trust has been proposed as a substitute. The court must determine whether the removal of the executors and trustees is expedient under the Administration Act 1969 and the Trustee Act 1956. The primary concern is whether the administrators' actions demonstrate a conflict of interest that would hinder the proper administration of the estate and execution of the trust.

The court found that the administrators had not demonstrated any misconduct or hostility towards Ms Farquhar. While there was a conflict of interest between their roles as administrators and beneficiaries, it was not enough to warrant their removal. The court emphasised the importance of respecting the deceased's choice of executors and trustees and the need to exercise the removal jurisdiction cautiously. The court concluded that the administrators had undertaken their task competently and that their actions did not prevent the proper execution of the Will. The application for the removal of the executors and trustees was dismissed.

The court reserved questions of costs, which will be dealt with by the trial judge after hearing evidence. The next event in the proceeding is an application to strike out the cause of action based in equity. The court also recommended the assignment of a judge to oversee the estimated trial duration and the provision of evidence for the substantive hearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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