Jackson v Jackson - [2016] NZHC 1723

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-106 [2016] NZHC 1723

IN THE MATTER the Estate of IVY JACKSON

BETWEEN

RAYMOND BARRY JACKSON Applicant

AND

STEPHEN JAMES JACKSON First Respondent

AND

LINDA MARGARET JACKSON Second Respondent

Hearing: 13 July 2016

Appearances:

R Butler for the Applicant
C Orton for the Respondents

Judgment:

27 July 2016

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 27 July 2016 at 4:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Jackson v Jackson [2016] NZHC 1723 [27 July 2016]

Introduction

[1] Mr Raymond Jackson has brought an originating application for an order under either s 6(2)(a) or s 19(1) of the Administration Act 1969 appointing him administrator of the estate of his late mother, Ivy Jackson, who died in Auckland on
6 April 2015. The respondents are Raymond’s brother Stephen, who is Ivy’s only other surviving child, and Stephen’s wife, Linda. Stephen and Linda were appointed as executors of Ivy’s estate in her last will dated 15 January 2014.

[2] The grounds upon which the application under s 19(1) of the Act is made are that:

(a) Stephen and Linda have neglected and/or refused to prove Ivy’s last will within three months of Ivy’s death;

(b) Raymond is a person interested in the estate; and

(c) it is in the best interests of the estate, and persons interested in the estate, if he is appointed as administrator.

Background

[3] In a judgment dated 18 March 2016,1 Courtney J granted leave for the application to be made by way of an originating application and for it to be filed in the Auckland registry of the Court. It is convenient, to explain the background to the application briefly and neutrally, for me to adopt what Courtney J said at [4]-[6] of that judgment:

[4] Raymond Jackson is concerned about the circumstances in which the will was executed, the application of the house sale proceeds and the application of the funds in Mrs Jackson’s bank account at the time of her death. Mrs Jackson executed a will in 2012 which distributed her estate evenly among her three children. In early 2014 she contemporaneously appointed Stephen Jackson as her attorney under an enduring power of attorney, executed a sale and purchase agreement in relation to her house for
$669,996 and executed the new will that provided for the proceeds of the

1 Jackson v Jackson [2016] NZHC 471.

sale to go to him and Linda Jackson. That will expressly excluded Raymond
Jackson and his sister (who has since died).

[5] Raymond Jackson asserts that, even allowing for the costs of care in the last year of Mrs Jackson’s life, the sale proceeds could reasonably have been expected to have been at least $650,000. Yet, when Mrs Jackson died
15 months later her bank account had less than $100,000 in it. When
Raymond Jackson expressed his concerns to the executors they advised,
through their solicitor, that they are “not interested in…

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 Jackson v Jackson

Details

AGLC: Jackson v Jackson [2016] NZHC 1723
Case: [2016] NZHC 1723
Decision Date: 27 July 2016

CaseChat Overview and Summary

In Jackson v Jackson, Raymond Barry Jackson applied for an order under the Administration Act 1969 to be appointed as the administrator of his late mother's estate. Ivy Jackson died on 6 April 2015, and her last will dated 15 January 2014 named Stephen James Jackson and his wife Linda Margaret Jackson as executors. Raymond contended that Stephen and Linda neglected and/or refused to prove the will within three months of Ivy's death, and sought to be appointed as administrator to investigate concerns about the circumstances of the will's execution, the sale of Ivy's house, and the disposition of funds in her bank account at the time of her death. Stephen and Linda argued that Raymond should not be appointed due to a potential conflict of interest, and that The Public Trustee should be appointed instead.

The court considered whether Raymond was entitled to be appointed as administrator, given that the executors had not proved the will. The court held that Raymond's personal interests aligned with those of the other beneficiaries, as he sought to determine whether funds should be brought into the estate. Furthermore, the court was not persuaded that The Public Trustee should be appointed, as there was no evidence that they would accept the appointment or how their fees would be met. The court granted Raymond an order nisi for letters of administration, subject to Stephen and Linda showing cause within 28 days as to why administration should not be granted to Raymond. The court also ordered that Raymond was entitled to costs on a scale 2B basis.

Orders