French v Hayward

[2019] NZHC 3334

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-616

[2019] NZHC 3334

UNDER

the Administration Act 1969 and Part 19 of the High Court Rules 2016

IN THE MATTER OF

The Estate of Ngaire Jean Hayward; and the Estate of David Hayward (also known as Dai Hayward)

BETWEEN

MATTHEW JOHN FRENCH

First Applicant

SARAH ELIZABETH FRENCH
Second Applicant

AND

DAVID MORGAN HAYWARD

Respondent

Hearing:	16 December 2019
Appearances:	J M Morrison for the Applicants No appearance for the Respondent
Judgment:	16 December 2019

JUDGMENT OF DOOGUE J

Introduction

[1]    These proceedings are brought for an order under s 21  of  the  Administration Act 1969 for the removal of the respondent as administrator of the subject estates, and for the appointment of an independent professional person Mr Alan James Laurenson, Chartered Accountant of Wellington as administrator in his place.

FRENCH v HAYWARD [2019] NZHC 3334 [16 December 2019]

Background

[2]    Mrs Ngaire Jean Hayward was married to Mr David Hayward (also known as Dai Hayward). The couple had  two  children,  David  Morgan  Hayward  and  Ngaire Hayward. Ngaire Hayward also had two children, Matthew John French and Sarah Elizabeth French.

[3]    David Morgan Hayward is a solicitor who lives in Northampton in  the United Kingdom. He also has two children.

[4]    Mrs Ngaire Jean Hayward died in Wellington on or about 27 June 2009. Under her will she appointed David Morgan Hayward as her executor.

[5]    At  the  time  of  her  death,  Mrs  Ngaire  Jean  Hayward  was  married  to  Mr David Hayward. Mr David Hayward died shortly after his wife on or about 2 August 2009. Under his will, David Hayward also appointed Mr David Morgan Hayward as his executor.

[6]    Probate for Mr David Hayward’s will was obtained on 15 April 2010 and probate for Mrs  Ngaire  Jean  Hayward’s  will  was  obtained  shortly thereafter  on 6 May 2010.

[7]    The specific bequests from both wills have been executed. All that remains is to deal with the residue.

[8]    Under the wills concerned, the whole of Mrs Ngaire Jean Hayward’s residuary estate passed to her husband, Mr David Hayward.

[9]    Mr  David  Hayward’s  residuary  estate  is  to  pass  to  the  respondent David Morgan Hayward as to 50% and to the children of his daughter Ngaire Hayward living at Mr Hayward’s death. The applicants are the only children of the daughter Ngaire Hayward living at Mr David Hayward’s death. Therefore the only persons interested in the ultimate residue of both of the subject estates are:

(a)The respondent David Morgan Hayward as to 50%; and

(b)The applicants Matthew John French and Sarah Elizabeth French as to the other 50%.

[10]   As I have said, Mr David Hayward lives overseas. He has been absent from New Zealand for many years. He has not left a lawful power of attorney and as a result there is jurisdiction to discharge or remove him and have another person appointed to be administrator in his place.

[11]   The applicants propose that a Alan James Laurenson of Wellington, Chartered Accountant, be appointed as administrator for the estate of the  late  Ngaire Jean Hayward and the late David Hayward. Mr Laurenson is willing and available to accept the appointment.

[12]   It is clear that he understands the obligations he would have as executor and that he would duly and faithfully carry out those duties. He qualified as a Chartered Accountant in July 1969. He has worked as a Chartered Accountant in private practice ever since. He regularly acts for clients in the administration of their trusts and estates. He is a trustee of numerous trusts and has acted as executor or provided accountancy services to numerous estates. He has been a member of the New Zealand Trustees Association since December 1996. He is therefore a suitable person to be appointed in this role.

[13]   The respondent was served in person on 28 November 2019. To date he has taken no steps in the proceedings.

Orders

[14]   Unless a defence is filed in accordance with the High Court Rules 2016 within 25 working days from the date of service orders are to issue as moved.

[15]   In the event a defence is filed the matter is to be referred to the Executive Judge for allocation of hearing time.

Doogue J

Solicitors:

Greg Gallagher & Co, Wellington