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Hoeberechts v Sprott

Hoeberechts v Sprott

Case [2017] NZHC 1928 14 August 2017

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-960 [2017] NZHC 1928

UNDER
section 21 of the Administration Act 1969,

and the High Court's inherent supervisory jurisdiction in relation to trusts

IN THE MATTER

of the Estate of Thomas James Sprott, probate of which was granted under CIV-

2014-484-8127 on 30 June 2014; the Estate of Ethel Marion Sprott, probate of which was granted under CIV-2014-484-

8126 on 30 June 2014, and the Sprott Familly Trust and the Rodleigh Family Trust

BETWEEN

LINDSAY ANNE HOEBERECHTS (NEE SPROTT)

Plaintiff

AND

ADRIAN JAMES SPROTT AND RICHARD JOHN NOWACKI Defendants

Hearing: 31 July 2017

Appearances:

V Bruton QC and P Brown for the Plaintiff
TJG Allan for the Defendants

Judgment:

14 August 2017

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 14 August 2018 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar
……………………………………

Counsel/Solicitors:
Ms V Bruton QC, Barrister, Auckland
Ms P Brown (plaintiff ’s instructing solicitor), Solicitors, Auckland
Mr TJG Allan and Mr S F Powrie, Grove Darlow & Partners, Solicitors, Auckland

HOEBERECHTS v SPROTT AND NOWACKI [2017] NZHC 1928 [14 August 2017]

[1] The plaintiff, as a beneficiary under the wills of her parents, has brought an interlocutory application to remove the defendants as executors of the wills.

[2] The application is opposed by the defendants and Alison Sprott, a beneficiary, although the defendant Richard Nowacki says that he wishes to retire for personal reasons unrelated to the plaintiff’s contentions.

[3] The plaintiff seeks further orders: (1) appointing an Auckland solicitor, William Patterson, as administrator of the estates; (2) for delivery to Mr Patterson of the assets of the estates; (3) to provide inventories and an account of receipts and disbursements for both estates; and (4) to provide information relating to two inter- vivos trusts established by the parents – the Sprott Family Trust and the Rodleigh Family Trust. These orders are also opposed by the defendants and Alison Sprott.

Background

[4] The application relates to the estates of Ethel Marion Sprott, who died in

2008, and her husband Thomas James Sprott, who died on 15 April 2014. Mr and Mrs Sprott had three children, all of whom are beneficiaries: the plaintiff Lindsay Hoeberechts, the defendant Adrian Sprott, and Alison Sprott. The application for removal is directed in substance to alleged acts and omissions of Adrian Sprott.

[5] The parties, in their affidavits and submissions, referred to the testators and to each other using given names. I will refer to the testators as Marion Sprott and Jim Sprott. I will refer to the three beneficiaries as Lindsay (the plaintiff), Adrian (the defendant executor), and Alison. I will refer to the second executor as Richard. Richard is a family friend of the Sprotts.

[6] The relevant terms of Marion Sprott’s will, and two codicils, are:

(a) She gave all of her real estate to her husband if he survived her by 14 days, as he did. The real estate was a…

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 Hoeberechts v Sprott

Details

AGLC: Hoeberechts v Sprott [2017] NZHC 1928
Case: [2017] NZHC 1928
Decision Date: 14 August 2017

CaseChat Overview and Summary

Lindsay Hoeberechts, a beneficiary under the wills of her parents, brought an interlocutory application to remove the defendants as executors of the wills. The application was opposed by the defendants and another beneficiary. The plaintiff sought further orders appointing an Auckland solicitor, William Patterson, as administrator of the estates; for delivery to Mr Patterson of the assets of the estates; to provide inventories and an account of receipts and disbursements for both estates; and to provide information relating to two inter vivos trusts established by the parents – the Sprott Family Trust and the Rodleigh Family Trust. The court considered the principles guiding a court in dealing with an application under s 21 to remove an administrator, which involved a large discretion which was heavily fact-dependent. The wishes of the testator/settlor were to be given consideration, but ultimately the question was as to what was expedient in the interests of the beneficiaries. The court concluded that the plaintiff had not established that it was expedient for Adrian to be removed as an executor. However, a second executor should be appointed to replace Richard. The court ordered that Richard be discharged as an executor and that Barry Vaughan Clive Stafford be appointed as the new executor of the estates. Costs were reserved.

Orders