Hepburn v Albert - [2024] NZHC 3373

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2024-416-000008

[2024] NZHC 3373

UNDER Part 18 of the High Court Rules, s 21 Administration Act 1969

IN THE MATTER OF

removal of executor/trustee, appointment of independent executor

BETWEEN

CHRISTINE LUCY HEPBURN

Plaintiff

AND

ANGELA JOY ALBERT

Defendant

Hearing: 12 November 2024

Counsel:

P A Depledge for Plaintiff No appearance for Defendant

Judgment:

13 November 2024

JUDGMENT OF GRAU J

[Formal proof]

[1] Robert Taane died on 23 September 2013. Robert’s daughters, Christine Hepburn and Angela Albert, are the named executors in Robert’s will (the Will). They are also the plaintiff and the defendant in this proceeding.

[2] Christine, Angela, and their brother, Thomas, are the beneficiaries of Robert’s estate. Robert’s Will provided that his residuary estate was to be distributed to his children “as tenants in common in equal shares”.1

1 In this decision I refer to the whānau members by their first names. I mean no disrespect; it is purely for ease of reference.

HEPBURN v ALBERT [2024] NZHC 3373 [13 November 2024]

[3] Robert’s late wife, Marilyn Taane, died on 12 September 2016, ending her life interest in a property owned by the estate in Wairoa (the Property). Angela has been living at the property since that time.

[4] Christine now asks the Court to remove her and Angela as executors and to appoint an independent administrator because the sisters are in dispute and are deadlocked. Angela is not paying rent and she will neither move nor buy out Christine and Thomas’ interests in the Wairoa Property. Christine and Thomas both want the Property sold and the proceeds distributed in accordance with their father’s Will.

[5] Since Marilyn died, Christine has been in contact with Angela about the sale of the Property and the distribution of the residuary estate to the beneficiaries. Christine has indicated to Angela that she is welcome to purchase the Property from the estate. Angela, who wishes to stay at the Property, appears to believe that her status under the Will as a “tenant in common in equal shares” means that she has received her share of their late father’s Property as he requested in his Will, has the legal right to live in the Property, and cannot be evicted because her name is on the title.

[6] I am satisfied that Angela was served with the proceedings and was aware of today’s hearing. She has however, taken no steps in this proceeding. Accordingly, this matter proceeds by way of formal proof, under r 15.9 of the High Court Rules 2016.

[7] It is abundantly clear the Court’s intervention is required in this case. Eight years have passed since the death of Robert’s wife Marilyn and the ending of her life interest in the Property. The estate should have been distributed by now, but it has not, and cannot.

[8] The statutory provision governing removal and reappointment of administrators is s 21 of the Administration Act…

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 Hepburn v Albert

Details

AGLC: Hepburn v Albert [2024] NZHC 3373
Case: [2024] NZHC 3373
Decision Date: 13 November 2024

CaseChat Overview and Summary

The case of Hepburn v Albert involves Christine Hepburn, the plaintiff, and Angela Joy Albert, the defendant, who are the executors of the estate of the deceased, Robert Taane. Christine seeks the court's intervention to remove herself and Angela as executors and to appoint an independent executor due to their deadlock over the distribution of the estate, particularly concerning a property in Wairoa. Christine and their brother, Thomas, wish to sell the property and distribute the proceeds according to their father's will, while Angela, who has been living in the property rent-free, believes she has already received her share and cannot be evicted.

The court was required to decide whether the deadlock between the executors justified their removal and the appointment of an independent executor. This decision hinged on whether the executors' incompatibility was so severe that it was seriously affecting the proper administration of the estate and preventing the distribution of the estate to the beneficiaries. The court considered the statutory provision under section 21 of the Administration Act 1969 and the principles guiding the removal of an administrator, which emphasise the court's duty to ensure estates are properly administered and trusts are properly executed.

The court found that the executors were indeed at a deadlock, with Angela preventing the sale of the property and the distribution of the estate. Angela's occupation of the property without consent and refusal to pay rent constituted a conflict of interest and a breach of her duties as an executor. Given these circumstances, the court deemed it appropriate to remove Christine and Angela as executors and to appoint an independent administrator. The court also decided that Angela should bear the costs of the proceedings due to her intransigence, which had caused the delay in estate administration.

In conclusion, the court issued an interim judgment directing Christine's counsel to identify a suitable independent executor. Once an acceptable candidate is found, the court will issue a final decision removing Christine and Angela as executors and appointing the new executor. The court also directed Christine's counsel to provide a schedule of costs for determination on the papers.

Orders