J v T - [2017] NZHC 3089

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-419-176 [2017] NZHC 3089

BETWEEN
J AND M

Applicants

AND

T Respondent

Hearing: 22 November 2017

Counsel:

K F Shaw for Applicants
K I Bond for Respondent

Judgment:

12 December 2017

[REDACTED] JUDGMENT OF WHATA J

This judgment was delivered by me on 12 December 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Harkness Henry, Hamilton
Whitfield Braun, Hamilton

J AND M v T [2017] NZHC 3089 [12 December 2017]

[1] Nearly 18 months after probate and the executors remain unable appoint a solicitor for the estate. They now seek to remove one another. New executors are needed. There shall be orders removing the current executors and appointing the Public Trust.

[2] My reasons follow.

Background

[3] JG died on 23 June 2016. Probate was granted on 19 July 2016. His will identified his three children (J, M and T) as the executors and beneficiaries of his estate. JG left a surviving spouse, PG, who is the other beneficiary named in the will. The will is a standard version of its kind. The estate includes JG’s interest in a unit title, being [redacted] (the Unit).

[4] Complicating matters only slightly, JG and PG entered into a contracting out agreement dated 26 February 2004 dealing with, among other things, the purchase by
PG of a half-share of the Unit, for $100,000. The agreement also sets out a process to be followed, in the event of death of one of the spouses, by the surviving spouse in dealing with the Unit. One of those options is to purchase the deceased’s share in the Unit. There is also a deed of acknowledgement of debt, dated 6 July 2005, wherein JG is recorded as having advanced to PG the sum of $300,000.

Executors in conflict

[5] From the early days of the executorship, J and M were keen to expedite the distribution of the estate and to settle matters with PG. Both sides agree PG expressed interest early on in purchasing JG’s share in the Unit. T, however, was concerned about the effect any agreement reached with PG might have on the residual estate. Her position was recorded in a five page closely scripted letter to J and M. The strength of T’s convictions, and her views more generally, were also conveyed in an email to J and M, dated 8 August 2016, in response to a letter received from PG’s lawyers, McBreens: [redacted]

[6] T was also concerned about the then estate lawyer’s apparent conflict of interest and agitated for his and the firm’s removal. J, however, wanted them to stay. M, it appears, supported J. T sent a lengthy letter to J and M on the subject on
10 August 2016, which she proposed to send to the estate lawyers, Allen Needham & Co Ltd. J’s frustration on this issue is revealed in a note…

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 J v T

Details

AGLC: J v T [2017] NZHC 3089
Case: [2017] NZHC 3089
Decision Date: 12 December 2017

CaseChat Overview and Summary

In the case of J and M v T, the applicants sought the removal of the respondents as executors of the estate and their replacement with the Public Trust. The respondents opposed the removal and sought to remain as executors. The High Court of New Zealand was tasked with determining whether the respondents should be removed as executors and, if so, who should replace them. The court examined the evidence and submissions from both parties and considered the relevant legal principles. The court found that the respondents were unsuitable to act as executors due to their inability to work together and their failure to appoint a solicitor for the estate. The court also found that the respondents' conduct had caused unnecessary delays in the distribution of the estate. The court held that it was expedient to remove the respondents as executors and appoint the Public Trust in their place. The court further held that the parties should bear their own costs of the application and that the judgment should be anonymised and suppressed to protect the privacy of the parties involved.

The court's decision was based on the principle that the court has a duty to see that estates are properly administered and that the wishes of the testator are to be given consideration, but ultimately the question is what is expedient in the interest of the beneficiaries. The court found that the level of incompatibility between the executors was at such a level that the proper administration of the will was seriously adversely affected. The court also found that the behaviour of all the executors, including the making of threats to get action and/or refusal to engage unless on a very particular basis, had led to inordinate delay in achieving the simplest of tasks, including the appointment of a lawyer for the estate. The court held that it was plainly expedient to change the current executorship. The court further held that the Public Trust should be appointed to administer the estate as it was a relatively small and uncomplicated estate. The court also held that the parties should bear their own costs of the application and that the judgment should be anonymised and suppressed to protect the privacy of the parties involved.

Orders