Jay v Gilbert - [2015] NZHC 1791

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2009-485-2354 [2015] NZHC 1791

IN THE MATTER
of the will and estate of COLIN

RUSSELL GILBERT

BETWEEN

BEVERLEY JAY Applicant

AND

GEOFFREY BRUCE GILBERT AND LAURICE DENISE GILBERT Respondents

Hearing: 29 July 2015

Counsel:

L H Pratley for Applicant
Respondents in Person

Judgment:

31 July 2015

JUDGMENT OF SIMON FRANCE J

[1] Section 44 of the Administration Act 1969 empowers a court to direct the administrators of an estate to exhibit on oath an inventory and account of the estate. The respondents are executors of their father’s estate. In 2013 the applicant, who is another of the deceased’s children and a beneficiary under the will, asked the Court
for a s 44 order. The order was made by Registrar Earles on 27 May 2013.1

[2] The respondents filed documents in compliance with the order on

21 June 2013. Thereafter, from the Court’s perspective, the matter was silent until on 27 March 2015 a further interlocutory application was filed. The application relies upon s 44 of the Act and requests a further order requiring the respondents to
file certain information.

1 In the estate of Colin Russell Gilbert HC Wellington CIV 2009-485-2354, 27 May 2013.

JAY v GILBERT [2015] NZHC 1791 [31 July 2015]

[3] A notice of opposition was filed, the primary thrust of which was that all the information had been provided. After hearing from the parties I indicated the application would be declined with reasons to follow.

[4] There were in my view three primary problems with the application.

[5] The first concerns the scope of the orders sought. There is little judicial consideration to date of s 44. That is no doubt due to it being sparingly used or needed. The purpose of the provision seems to be to confirm the role of the Court in assisting beneficiaries and others with an interest in the estate to obtain an up to date statement of the position of the estate.2 The nature of the information to be provided under s 44 is clarified to a certain degree by r 27.32 of the High Court Rules but there is still some flexibility. For example, what is covered by the concept of an inventory is not addressed. I accept the proposition in Reeves v Freeling that the Court has a discretion as to the nature of the inventory that will be accepted.3 That also suggests, as one would expect, that there is capacity for an applicant to return to the Court to request compliance with an order that has been made.

[6] However, the present application goes well beyond that. As an example, the first order sought is for production of all the invoices underlying all the payments made from the estate. I have no doubt there was no obligation to provide these invoices initially. Nor have I seen any material that might have caused the Court to require such documentation as part of its original order. Any further application…

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 Jay v Gilbert

Details

AGLC: Jay v Gilbert [2015] NZHC 1791
Case: [2015] NZHC 1791
Decision Date: 31 July 2015

CaseChat Overview and Summary

The case of Jay v Gilbert involves a dispute regarding the administration of the estate of Colin Russell Gilbert. Beverley Jay, one of the deceased's children and a beneficiary under the will, applied for an order under section 44 of the Administration Act 1969, requiring the executors, Geoffrey Bruce Gilbert and Laurice Denise Gilbert, to provide an inventory and account of the estate. The respondents, who are also children of the deceased, filed documents in compliance with the order. However, Beverley Jay filed an interlocutory application seeking further information from the executors. The court was required to determine whether the application should be granted and whether the executors had adequately complied with the initial order.

The court considered three primary issues in declining the application. Firstly, the scope of the orders sought by Beverley Jay exceeded the limits of section 44, which is intended to confirm the role of the court in assisting beneficiaries and others with an interest in the estate to obtain an up-to-date statement of the estate's position. The court found that the application went beyond the original order and was not a vehicle for challenging the actions of the executors. Secondly, the court noted that much had happened since the initial order was made, and the executors had taken steps to address Beverley Jay's concerns. The court considered that a more timely application was required if there was dissatisfaction with compliance. Lastly, the court found that almost all the information being sought had already been provided, and the executors had complied with the initial order, except for one minor oversight.

The court declined the application and held that the executors were entitled to reimbursement of any reasonable disbursements. The reasoning was based on the excessive scope of the orders sought, the passage of time since the initial order, and the fact that most of the information had already been provided. The executors' compliance with the initial order, apart from one minor oversight, was deemed satisfactory.

In conclusion, the court declined Beverley Jay's application and held that the executors were entitled to reimbursement of any reasonable disbursements. The court found that the application went beyond the scope of section 44 and that the executors had adequately complied with the initial order, except for one minor oversight. The court's decision highlights the importance of adhering to the scope of section 44 and the need for timely applications when challenging the actions of executors.

Orders