Frickleton v Frickleton - [2016] NZHC 389

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-398 [2016] NZHC 389

UNDER
s 21 Administration Act 1969 and s 51

Trustees Act 1956

IN THE MATTER

of an application to remove the executor of the Estate of Kalvyn William Frickleton and the trustee of the Frickleton Family Trust

BETWEEN

MARK ANDREW FRICKLETON Plaintiff

AND

CARL WILLIAM FRICKLETON Defendant

Hearing: 17 February 2016

Appearances:

M Freeman for the Plaintiff
J Grace for the Defendant

Judgment:

9 March 2016

JUDGMENT OF THOMAS J

This judgment was delivered by me on 9 March 2016 at 11.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:
Thomas Dewar Sziranyi Letts, Wellington.

Counsel:
J R Grace, Porirua.

FRICKLETON v FRICKLETON [2016] NZHC 389 [9 March 2016]

Introduction

[1] The plaintiff, Mark Frickleton (Mark), applies to remove the defendant, Carl Frickleton (Carl), as the sole executor of their father Kalvyn Frickleton’s estate, and as the sole trustee of the Frickleton Family Trust (the Trust). The applications are made under s 21 of the Administration Act 1969 and s 51 of the Trustees Act 1956.

[2] The essential allegations are that Carl, Mark and the other Frickleton siblings’ relationships have broken down to such an extent that Carl must be removed in order to ensure fairness amongst the beneficiaries.

[3] Mark proposes that Carl be replaced with the Public Trust in his role as executor and trustee. Carl opposes this and proposes that an additional independent accountant, Carey Rohloff, who is known to the family, be appointed as an additional trustee and executor.1 Both the Public Trust and Mr Rohloff consent to any such appointment.

Factual background

[4] Mr Kalvyn Frickleton, (Mr Frickleton), Mark and Carl’s father, died on

7 September 2009. His surviving children are Carl, Mark, Reece Frickleton and

Dean Frickleton (known as “Jim”).

[5] Mr Frickleton’s will was dated 10 June 1999, with a codicil dated

16 November 2004. Under the will, Mr Frickleton’s brother, Alan Frickleton, and lawyer, Ernest Gartrell, were named executors and trustees. The codicil replaced Alan, after his death, with Carl.

[6] The beneficiaries of Mr Frickleton’s estate are Mark, Reece, Jim and Carl. The beneficiaries of the Trust are the four brothers and any grandchildren of Mr Frickleton. The Trust assets are a 100 per cent shareholding in the company
Heritage Projects Limited, a yard rented to a car dealer in Lower Hutt, and storage

1 I queried the Court’s jurisdiction to appoint a further executor. Counsel for Carl filed a memorandum after the hearing addressing this issue. He concludes there is no such jurisdiction.

units adjacent to the car yard. Heritage Projects Ltd, of which Carl is the only director, is the company which manages the Trust’s assets.

[7] On 23 March 2010, the High Court removed Mr Gartrell as an executor and trustee, following an application by Carl. This was because Mr Gartrell, who had been Mr Frickleton’s solicitor, had been suspended by the NZ Law Practitioners’ Disciplinary Tribunal and…

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.

Continue reading Frickleton v Frickleton

Details

AGLC: Frickleton v Frickleton [2016] NZHC 389
Case: [2016] NZHC 389
Decision Date: 9 March 2016

CaseChat Overview and Summary

The High Court of New Zealand considered an application to remove Carl William Frickleton as the executor of his father Kalvyn William Frickleton's estate and as the sole trustee of the Frickleton Family Trust. The application was made under s 21 of the Administration Act 1969 and s 51 of the Trustees Act 1956. The plaintiff, Mark Andrew Frickleton, argued that the relationship between Carl and himself had deteriorated to the point that Carl's removal was necessary for fairness among the beneficiaries. Mark proposed that Carl be replaced with the Public Trust, while Carl suggested that an independent accountant, Carey Rohloff, be appointed as an additional trustee and executor. The court found that while there was hostility between the parties, it was not at a level that undermined Carl's ability to administer the estate and trust for the benefit of the beneficiaries. The court also found that Carl's actions as executor and trustee did not constitute a conflict of interest. However, the court concluded that the appointment of an additional independent trustee was warranted to ensure fairness and objectivity in the management of the trust. The application for Carl's removal was dismissed, but the application for the appointment of an additional trustee was granted. The parties were directed to agree on the identity of the new trustee within 28 days, or the court would make a decision based on their submissions.

Orders