Jellyman v Jellyman - [2018] NZHC 210

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2017-441-000041

[2018] NZHC 210

IN THE MATTER of Part 18 of the High Court Rules 2016

BETWEEN

HAZEL MARIE JELLYMAN

Plaintiff

AND

MAURICE RALPH JELLYMAN

Defendant

Hearing: 15 February 2018

Appearances:

A J Harris for the Plaintiff

Defendant in person with HJ Yeoman as McKenzie friend

Judgment:

21 February 2018

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 21 February 2018 at 3:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Gifford Devine, Hastings Copy to: Defendant

JELLYMAN v JELLYMAN [2018] NZHC 210 [21 February 2018]

Introduction

[1] The plaintiff, Hazel Marie Jellyman, is a widow living in Hastings. She has Alzheimer’s disease and acts through a guardian ad litem, her grandson Carl Ross Waghorn. Mrs Jellyman is a trustee of a trust set up by the will of her late husband. The other trustee is the defendant, her son Maurice Ralph Jellyman.

[2] The trust set up by the will of her late husband provides that Mrs Jellyman can continue to live in the family home while she remains a widow. The trust also provides that Mrs Jellyman may ask that the house be sold and another bought in its place. That happened previously when she moved from Kaiapoi to Hastings.

[3] The present proceedings claim that Mrs Jellyman has asked that the Hastings house be sold and another bought in Tauranga near her daughter, Heather Maureen Jenkins, who would care for her. It is alleged that Mr Jellyman has been unreasonable in withholding his consent and is motivated in breach of his duties by self-interest as a residuary beneficiary.

[4] The proceedings seek an order under s 51 of the Trustee Act 1956 or pursuant to the Court’s inherent power replacing Mr Jellyman as a trustee with his sister, Mrs Jenkins. In the alternative, various orders are sought under s 68 of the Trustee Act as to the sale of the Hastings house and the purchase of a replacement property in Tauranga.

Factual background

[5] The testator, John Malcolm Jellyman, died in Christchurch on 14 January 2001. Probate of his will was granted on 25 January 2001. In his will he appointed his wife (the plaintiff) and his son (the defendant) his executors and trustees.

[6] The testator’s intention expressed in his will was to establish a trust in relation to his interest in the family home. The trust is for the benefit of Mrs Jellyman and enables her to have the use, occupation and enjoyment of the house while she remains a widow and personally occupies it. Once the trust ends the property is held for the testator’s children, including the defendant. The will empowers the trustees, at the

request of Mrs Jellyman, to sell the house and use the proceeds of sale in the purchase of another house to be held upon the same trust.

[7] Mrs Jellyman says that…

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 Jellyman v Jellyman

Details

AGLC: Jellyman v Jellyman [2018] NZHC 210
Case: [2018] NZHC 210
Decision Date: 21 February 2018

CaseChat Overview and Summary

Hazel Marie Jellyman, a widow with Alzheimer's disease, brought proceedings against her son, Maurice Ralph Jellyman, seeking to have him replaced as a trustee of the trust established by her late husband's will. Mrs Jellyman, represented by her grandson as a guardian ad litem, wishes to sell the family home in Hastings and purchase another property in Tauranga to be near her daughter, Heather Maureen Jenkins. Maurice, however, has refused to consent to the sale, motivated by self-interest as a residuary beneficiary. The court had to decide whether Maurice should be replaced as a trustee and whether the family home should be sold and replaced with another property in Tauranga.

The court found that Mrs Jellyman's welfare was the guiding principle in this case. It accepted the evidence of Mrs Jellyman's doctor, who stated that maintaining the independence of the elderly where they can manage with proper support is a desirable outcome from a health perspective. The court also accepted the evidence of various persons, both family members and others, that Mrs Jellyman does wish to move to Tauranga to be near her daughter, who can offer close and continuous support to her. The court concluded that Maurice's past conduct did not give it any confidence that the sale process would proceed smoothly if he remained a trustee under his father's will. Additionally, Maurice's view that his mother had been coerced into making the statements in her affidavits that she wishes to move to Tauranga was not supported by any evidence.

The court ordered the removal of Maurice as a trustee of the trust created by clause 4 of the will of John Malcolm Jellyman, and appointed Heather Maureen Jenkins as a trustee in his place. It also ordered that the property be vested in both Mrs Jellyman and Heather Maureen Jenkins. The court further ordered costs against Maurice on a 2B basis, together with reasonable disbursements as fixed by the Registrar.

Orders