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Harsant v Menzies

Harsant v Menzies

Case [2012] NZHC 3390 13 December 2012

Trustee Duties

Prudent Investment

Removal of Trustees

Equitable Jurisdiction

Trusts & Equity

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-000007 [2012] NZHC 3390

UNDER the Administration Act 1969

IN THE MATTER OF the estate of the late FREDERICK GEORGE HARSANT

BETWEEN PAMELA CONSTANCE HARSANT Applicant

ANDGAIL MAVIS MENZIES, COLIN WALTER HARSANT AND MALCOLM JOHN HARSANT
Respondents

Hearing: 24 September 2012
Further memoranda received on 11 and 12 October 2012

Appearances: B M Stewart and Mr Hall for the Applicant
M J Harsant on behalf of the Respondents

Judgment: 13 December 2012

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 13 December 2012 at 1 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Simpson Western, Private Bag 93533, North Shore City 0740
Copy To: The Trustees of the Frederick George Harsant Estate, 720 Purangi Road, RD1,
Whitianga.

HARSANT V MENZIES HC AK CIV-2012-404-000007 [13 December 2012]

[1] This is an application under s 21 of the Administration Act 1969 to remove and appoint new executors in the estate of Frederick George Harsant, who died on 5
June 1992.1

[2] The applicant, Pamela (Pam) Harsant is a beneficiary under the will of her father (Frederick), dated 5 January 1992. Probate was granted on 28 July 1992 to three of Pam’s siblings, the respondent executors, Gail Menzies, Colin Harsant and Malcolm (Sam) Harsant.2 Gail and Sam are also beneficiaries under their father’s will.3

[3] At the time of Frederick’s death there were two other Harsant siblings who were also beneficiaries: Ronald (Ron) and Alison. Alison died on 24 May 2012. Before her death she filed an affidavit supporting the position of the executors in these proceedings.

[4] Pam seeks the removal of Gail, Colin and Sam and their replacement as executors by New Zealand Guardian Trust Company Ltd (Guardian Trust) be appointed in the stead of Gail, Colin and Sam.

[5] The relevant parts of Frederick Harsant’s will are as follows:

I APPOINT my sons COLIN WALTER HARSANT and MALCOLM JOHN HARSANT and my daughter GAIL MAVIS MENZIES (hereinafter called my Trustees) to be the executors and trustees of this my will.

...

I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal ... to my trustees Upon Trust to pay thereout all debts duties and expenses whatsoever relating to my estate and to transfer the residue thereof to and among my children RONALD BRUCE HARSANT, GAIL MAVIS MENZIES, MALCOLM JOHN HARSANT, ALISON JOY HARSANT and PAMELA CONSTANCE HARSANT in equal shares.

I DIRECT AUTHORISE and empower my trustees in the administration of my estate and the carrying out of the trusts of this my will to exercise all or any of the following powers:

1 For reasons I shall later give I consider that the application is more appropriately brought as an application to remove and appoint trustees under s 51 of the Trustee Act 1956. For convenience, however, I will refer to the trustees as the “executors” for most of this judgment.
2 For clarity’s sake each of…

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 Harsant v Menzies

Details

AGLC: Harsant v Menzies [2012] NZHC 3390
Case: [2012] NZHC 3390
Decision Date: 13 December 2012

CaseChat Overview and Summary

Pamela Harsant, a beneficiary under the will of her late father Frederick George Harsant, has applied for the removal and appointment of new executors in his estate. The executors, Gail Menzies, Colin Harsant, and Malcolm Harsant, are also beneficiaries under their father's will. Pamela seeks the replacement of the current executors with New Zealand Guardian Trust Company Ltd. The primary asset of the estate is a 22-hectare farm property adjoining the Cooks Beach residential area and the Purangi River Estuary. The case revolves around the management and sale of this property by the executors.

The court had to decide whether it was expedient to remove the existing executors and appoint new ones in their place. The court considered the relevant legislation, the terms of the will, and the circumstances surrounding the management of the estate property. It also examined the executors' decisions regarding the sale of the property and the implications of those decisions for the welfare of the beneficiaries.

The court found that while the executors had made rational decisions in the best interests of the beneficiaries as a group, it was expedient to remove and replace them. The court was concerned about the prolonged holding of the property, the diminishing market value, and the lack of income from the property. The court emphasized the importance of the trustees' duty to see estates properly administered and trusts properly executed, and the need to balance the wishes of the testator with the welfare of the beneficiaries.

The court ordered that Gail Menzies, Colin Harsant, and Malcolm Harsant be removed as trustees of the estate of Frederick George Harsant, and New Zealand Guardian Trust Company Ltd be substituted as the trustee. The applicant's costs are payable on a 2B basis out of the estate. The court reserved leave to all parties and to Guardian Trust to apply further should the need arise.

Orders