Hobbs v Hobbs - [2020] NZHC 1564

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000265

[2020] NZHC 1564

UNDER Part 19 of the High Court Rules and the Trustee Act 1956 and the Administration Act 1969

IN THE MATTER

of an application by Doreen Lesley Hobbs for an order removing Yvonne Noeline Hobbs as executrix and trustee of the will of the late Warren Thomas Ernest Hobbs, the

appointment of Doreen Lesley Hobbs as

executor/executrix and trustee in her stead, and the vesting of estate property in Doreen Lesley Hobbs

BETWEEN

DOREEN LESLEY HOBBS

Applicant

AND

YVONNE NOELINE HOBBS

Respondent

Hearing: Determined on the papers

Counsel:

A C Hughes-Johnson QC for Applicant

Judgment:

3 July 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 3 July 2020 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

HOBBS v HOBBS [2020] NZHC 1564 [3 July 2020]

Introduction

[1] Warren Thomas Ernest Hobbs (Warren) died at Christchurch on 13 January 2017. He was survived by his wife, Yvonne Noeline Hobbs (Yvonne), his daughter Doreen Lesley Hobbs (Doreen) and, another daughter Karen Fleming.

[2] Warren died leaving a last will dated 31 March 2015. Probate of the will was granted to Yvonne on 11 February 2017.

[3] Warren and Yvonne each owned a one-half interest in a property at Vancouver Crescent, Christchurch.

[4] Under Warren’s will, Yvonne was entitled to all of Warren’s personal chattels and to reside during her life-time in the Vancouver Crescent property or any substitute property purchased for it. Yvonne was also granted a life interest (including the right to the use of capital as necessary) in the residue of the estate. Upon the death of Yvonne the residue shall go to Doreen. If Doreen predeceases Yvonne the residue will go to Doreen’s children. Doreen has two children aged 30 and 14 years respectively.

[5]Since probate was granted, Warren’s estate has been dealt with as follows:

(a)all personal chattels have gone to Yvonne;

(b)Yvonne is no longer residing in the Vancouver Crescent property. She is in a rest home. The Vancouver Crescent property is the subject of a conditional agreement for sale and purchase and there is a likelihood it will need to be transferred in the near future; and

(c)The residue (cash investments) is being held in accordance with
Warren’s will and being applied for the benefit of Yvonne.

[6] The only persons with any possible interest under Warren’s will are Yvonne, Doreen and Doreen’s children. Warren’s other daughter, Karen Fleming, was excluded from any provision under the will and took no action against the estate.

[7] Yvonne has developed a dementing illness which is progressive, and which has a negative impact on her cognition to the extent that she is no longer able to understand the implications of her current situation, or the impact of these on her health and welfare. She is mentally incapable of making decisions regarding the conduct of the affairs…

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 Hobbs v Hobbs

Details

AGLC: Hobbs v Hobbs [2020] NZHC 1564
Case: [2020] NZHC 1564
Decision Date: 3 July 2020

CaseChat Overview and Summary

In the case of Hobbs v Hobbs, Doreen Lesley Hobbs applied for an order to remove Yvonne Noeline Hobbs as executrix and trustee of the will of the late Warren Thomas Ernest Hobbs. Doreen sought to be appointed as executor/executrix and trustee in Yvonne's stead, and for the estate property to be vested in her. The court was required to decide on the legal issues regarding the commencement of the proceeding, the dispensation of service, the removal of Yvonne as executrix and trustee, the appointment of Doreen and Mark Tutty as co-executors/trustees, and the vesting of estate property. The court found that the proceeding could be commenced by originating application under Part 19 of the High Court Rules 2016, and service of the proceeding could be dispensed with. The court also found it appropriate to remove Yvonne as executrix and trustee due to her incapacity, and to appoint Doreen and Mark Tutty as co-executors/trustees in her place. The interest of Yvonne in the property at 72 Vancouver Crescent, Christchurch, was to vest in Doreen and Mark Tutty in their capacity as co-executors/trustees of Warren's will. The reasonable costs of the application were to be paid from the assets of Warren's estate.

The court's reasoning was based on the fact that Yvonne had developed a dementing illness, which had a negative impact on her cognition, rendering her incapable of making decisions regarding the conduct of the affairs of Warren's estate. The court considered the tension between the requirement to provide for Yvonne's needs and the interest Doreen had in the residue of the estate. The court found that appointing Doreen and Mark Tutty as co-executors/trustees would address this tension. The court referred to the principles set out in Tod v Tod, which emphasised the court's duty to see estates properly administered and trusts properly executed, and the importance of considering the interests of the beneficiaries. The court found it expedient to remove Yvonne as executrix/trustee and to appoint Doreen and Mark Tutty as co-executors/trustees in her place. The court also found it appropriate to vest the interest of Yvonne in the property in Doreen and Mark Tutty in their capacity as co-executors/trustees of Warren's will.

Orders