Jellyman v Jellyman
[2018] NZHC 210
•21 February 2018
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 she wants to sell her house in Hastings and purchase another one in Tauranga to be near her daughter. She has attempted to list the house for sale, but Mr Jellyman has refused to sign a listing authority. Mr Jellyman has given no reason for his failure to agree to an open market sale, other than his refusal to incur a real estate agent’s commission, which he says would adversely impact on the value of his father’s estate. Mrs Jenkins offered to reimburse the real estate agent’s commission, but Mr Jellyman refused the offer.
[8] Following further discussions between Mrs Jenkins and her brother, Mrs Jenkins sent Mr Jellyman the listing fee for selling the house on TradeMe. Notwithstanding that Mrs Jenkins had obtained a registered valuer’s report valuing the house at $326,000, Mr Jellyman listed the house on TradeMe for $425,000. No sale has been able to be achieved at that price.
[9] In a document entitled Response and Statement of Defence, filed on 17 January 2018, Mr Jellyman states:
I agree entirely I have been negative and non responsive in much that involves the sale of this Home. However, while the Land Agents are welcome to express their opinions on values, I still have the rights, as my Fathers Executor, to attempt to get the best price, in my view.
[10] Furthermore, Mr Jellyman does not believe that his mother wishes to move to Tauranga. He is of the view that his sister, Mrs Jenkins, has instigated the “push” to shift their mother to Tauranga knowing she is in no fit state of mind to make a rational decision of her own.
[11] He says that from the time his mother has lived in Hastings she has expressed to him in no uncertain terms many times “Maurice, whatever happens, do not let me go back to the Bay of Plenty, I do not want to live there”. Mr Jellyman says his mother has often spoken of the fact that her husband had other women during their time living in that region and that it held many bad memories. Mr Jellyman states that if his
mother’s home must be sold, “it has always been my wish and intent to have her placed in Mary Doyle Retirement Village, Havelock North”.
Mrs Jellyman’s wish to move to Tauranga
[12] Mr Jellyman says that his mother has told him in no uncertain terms that she does not want to live in the Bay of Plenty. This is, however, contrary to two affidavits sworn by Mrs Jellyman herself, as well as affidavits from two family members and three independent persons, being her doctor, her solicitor and a real estate agent.
[13]In her first affidavit sworn on 12 July 2017, Mrs Jellyman states:
3. I wish to go to Tauranga to live close to my daughter. I need to buy a house there to live in. I have asked my son, Maurice, to agree to sell the Hasting’s house by listing it with real estate agents. For some reason, he will not do so. I do not understand why.
[14]In her second affidavit sworn on 18 December 2017, Mrs Jellyman states:
2.In July 2017, I swore an Affidavit in these proceedings in which I said I wanted to go to Tauranga to live close to my daughter, Heather. That is still my wish.
3.I want to buy a house in Tauranga and to do that I need to sell my present house in Hastings. My son, Maurice, will not agree. I still do not understand why.
4.I am frightened of Maurice. I live alone and when I have contact with him he shouts at me and abuses me. I feel intimidated by him. I am very worried he will threaten me over the January period when I am alone in the house in Hastings.
5.I just want to move away from Hastings to Tauranga to live happily with my daughter and my grandchildren in the Bay of Plenty.
6.I have nobody here in Hastings but Maurice.
[15] Mrs Jellyman does, however, have Alzheimer’s disease. Her doctor, Andrew Heslop, has sworn an affidavit dated 22 January 2018 in which he gives his opinion on how Alzheimer’s disease affects the plaintiff and records her wish to move to Tauranga. Dr Heslop states:
3.In February 2017, my opinion was sought regarding Hazel Jellyman’s capacity to defend or comprise proceedings before this Court and I stated that, in my opinion, she did not have that capacity. A copy of
my letter of 23 February 2017 to the solicitors for the Plaintiff is attached as Exhibit “A”. My reason for that view, was that litigation is generally stressful, sometimes complex or urgent, and in this case, personal.
4.At that time, I also expressed the view that while Mrs Jellyman suffered from Alzheimer’s Disease, she was still well able to form a view about her living circumstances. In particular, I said:
I believe she has a clear desire to move to Tauranga. She knows she wants to move and the reasons for it – i.e. to be closer to her family. She understands the benefits to her mental and physical wellbeing and is clear that she no longer wishes to remain in her current situation. She is able to clearly state the reasons for this. I believe she is able to make choices around her planning for the future.
5.In December 2017, I was requested again to review Mrs Jellyman’s capacity. After doing so, I confirmed the opinion expressed in my letter of 28 February 2017. I was aware of what Mrs Jellyman proposed to aver in her further affidavit. In my opinion, Mrs Jellyman’s Alzheimer’s has not deteriorated significantly since February 2017.
6.I attach as Exhibit “B” a copy of my letter to the solicitors for the Plaintiff dated 18 December 2017. I confirm that Mrs Jellyman is very clear in her desire to move to Tauranga.
7.There is no doubt in my mind that Mrs Jellyman is quite certain about what she wishes to do and I can see positive benefits to her health and her wellbeing if she is able to do it. Living as she does, alone in a house in Hastings, with support only from a person who she apparently finds intimidating and therefore does not want to rely upon, means that it is likely that her ability to remain independent will be curtailed. As I understand her wishes she wants to live in Tauranga where she has more general support from her wider family and as a consequence can remain independent with that support. From a health perspective maintaining the independence of the elderly where they can manage with proper support is a desirable outcome. I would endorse that for my patient.
8.In my opinion, Mrs Jellyman is still able to undertake the role as a Trustee of her late husband’s estate where the matters involved are relatively simple decisions and do not involve complex reasoning or stress.
[16] In a letter dated 7 March 2017 sent to Mr Jellyman and attached as Exhibit “A” to an affidavit sworn on 19 May 2017, Mrs Jellyman’s solicitor, Neil William Dent, states:
4.We have been instructed by your Mother to repeat that she wishes to move to Tauranga and desires that the Trustees sell the Grove Road property and buy her a new property in Tauranga in which she can
reside as provided in her late husband’s will. As a Trustee she can see no disadvantage to the Trust in the buoyant market and therefore again seeks you concurrence and copoeration [sic] within the next ten days.
5.As we indicated in our letter of the 13th of December the only alternative available to Mrs Jellyman is litigation in order to have the Court review your decision or replace you as a Trustee.
[17] In an affidavit sworn on 18 May 2017, a real estate agent, Alisa Jane Kennedy, also states:
1.I am a Sales Consultant employed by Tremain Real Estate at Hastings. I have never met the Defendant.
2.In November 2016 I was contacted and asked to attend at the property known as 9/212 Grove Road, Hastings. There I met with the Plaintiff Mrs Hazel Jellyman. She was an elderly lady living there alone. She told me she wished to list the property for sale because she wished to move to Tauranga.
…
5.Later I learned from Mrs Jellyman’s Solicitors that to list the property I also needed to obtain the signature of Mr Maurice Jellyman the Trustee of her late Husband’s estate. I was informed that Mr Maurice Jellyman refused to sign the Listing Authority.
6.Tremain Real Estate therefore halted any sales action.
[18] Cheryl Lorraine Robinson is the plaintiff’s niece. She is presently manager at the Chatham Club in Hastings, which is a support organisation for persons suffering from Alzheimer’s disease. She is also a former nurse. In an affidavit sworn on 18 May 2017, Ms Robertson states:
2.While Hazel and I have always had a connection I became more involved with her last winter through the [Chatham] Club. Personally I have observed the following:
a.Hazel is a very lonely and frail old lady living alone in her unit on Grove Road waiting for the next person to visit her. Unless her daughter travels from Tauranga, nobody does.
b.In late 2016 she decided she wanted to go to Tauranga and be near her daughter. She was optimistic about that and got into a very good frame of mind about it. She was happy when discussing it with me.
c.She could not understand why her son Maurice was stopping her selling her house. She did not understand the legal issues.
d.Maurice’s resistance has caused her to become depressed in a way which I would describe as situational depression. That affects her health. If she was able to move while maintaining a little of her independence I think that depression would resolve.
e.Hazel is terrified about Maurice coming to her home. She does not want him there.
[19] Finally, Mrs Jenkins has also filed an extensive affidavit in support of her mother’s application. In her affidavit sworn on 17 May 2017, Mrs Jenkins states:
5.As my mother has grown older, and with the slow onset of Alzheimer’s Disease, her ability to manage on her own and maintain her independence has decreased. She has become forgetful and her memory of recent events is not as good as it was. Her dependence upon me has increased and she has wanted to move closer to me for that purpose. It is apparent to me that my mother can more easily maintain her independence by being in Tauranga in an apartment in a retirement village where I can provide the daily support she wants. At my mothers request I have taken over supporting her in day to day activities such as groceries, banking utility bills medical, Chatham Club (alzheimers support club), and option assessments as my mother has not wanted to continue with Maurice because she feels intimidated, bullied and humiliated by him.
6.Sadly, now my brother Maurice provides no support to my mother in Hastings and appears to wish that she simply vacate the house so that it falls into the residue of my father’s Will that might benefit him. That is the only conclusion I can draw from his actions as a Trustee and his comments to me on the telephone.
7.My mother has told me repeatedly that she wants to sell the house and move to Tauranga. She cannot understand why she needs Maurice’s consent to sell “her house” and why he is involved in preventing it. I have tried explaining the Trust’s interest in it to her, but she does not understand or if she does, remember what she has been told.
Mr Jellyman’s relationship with his mother
[20] As noted above, Mrs Jellyman states in her affidavit sworn on 18 December 2017 that she is frightened of Mr Jellyman and that he shouts at her and abuses her.
[21] Mr Jellyman’s behaviour towards his mother is also the subject of two affidavits by independent real estate agents who contacted Mr Jellyman following his listing of the house for sale on TradeMe. Kelly Mary Riches was one of the real estate agents who met Mr Jellyman at the property. She states:
2.While I was present in the room and Kaye Harrison was discussing with Mr Jellyman [sic] what she could do, Mr Jellyman became very aggressive and unpleasant with his mother Hazel. She had started talking about the need to have her daughter involved in the transaction and he became irritated. He told her to “fucking shut up” and said that she didn’t even know what was going on. He was quite aggressive and overbearing regarding his mother and I felt embarrassed but at the same time very concerned about his attitude and behaviour.
3.Mr Jellyman became quite heated with his mother so Kaye Harrison and I decided to split them up and Mr Jellyman took me on a tour of the property. Once we returned to the main room Mr Jellyman said he would meet us there the next day. An appointment was made to meet Mr Jellyman at the property the following day. I attended with Kaye. Mr Jellyman did not keep the appointment.
4.I was still really concerned about Mrs Jellyman. She was an old and frail lady. It appeared to me that she was being bullied and abused and in discussion with Kaye Harrison we decided that we should telephone her daughter about that. I found that contact in Mrs Jellyman’s telephone diary with her knowledge, and Kaye contacted her daughter.
[22]In her affidavit, sworn on 17 May 2017, Mrs Jenkins states:
18.Sadly, I did not find Kay Harrison’s [sic] advice to me a surprise. I have found my brother Maurice to be a bully. I have found him to be aggressive and dominating with my mother. That I suspect is part of the reason she wishes to move away.
[23] Mr Jellyman acknowledges his behaviour towards his mother. In his Response and Statement of Defence, he states:
With regard to my language and supposed “Bullying”. I make no apologies for being firm and direct and yes, how I speak to my Mother can be construed as offensive and derogatory but it is not intended to be and has been that way all my adult life. At the time expressed by Kelly Mary Riches, in her Affidavit, I was very frustrated with my Mother at that moment and felt that she was not expressing her wishes but those of my Sister.
[24] In an affidavit filed by Harold James Yeoman in support of the defendant, sworn on 16 January 2018, Mr Yeoman confirms Mr Jellyman’s manner of speaking to his mother. He states:
5.I have accompanied Maurice while visiting his Mother several times. I have spoken to him with regard [sic] the way he speaks to her. It is unnecessary but I must add that I am very well aware he does so without intending to be abusive. I speak to him often on job sites for the same issue. …
Mr Jellyman’s proposal
[25] Mr Jellyman says he now has no issue with selling the house and proposes that the parties should prepare a brief of why Mrs Jellyman should live where and then an independent person should discuss these options with her and allow her to decide what she wishes to do.
[26] Mr Jellyman says he will accept his mother’s decision, but believes that his mother has been coerced into falsely stating that she wishes to move to Tauranga and making malicious statements about being afraid of him. He does not accept the truth of his mother’s statements in her affidavits nor the evidence of her doctor and of her solicitor and says, without evidence, that his sister, Mrs Jenkins, was present when the affidavits were sworn.
[27]Mr Jellyman told me that:
This whole exercise was contrived on 18 January 2001 when my sister was too lazy to walk from the lounge down to the cow shed where my two brothers and myself, along with her son, divided dad’s tools up equally between the four of us and she made up her mind there and then that no matter what she was going to take control of mum’s life, mum’s finances to her own benefit.
Power of appointment of new trustee
[28] Section 51(1) of the Trustee Act gives the court a general power to appoint new trustees. It provides:
51 Power of court to appoint new trustees
(1)The court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the court, make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.
…
[29] In the present case, the assistance of the court is required because there is no power to appoint or remove trustees conferred by the trust set up in the deceased’s will.
[30] Section 51(2) lists five situations where the court may make an order under s 51(1). The first listed situation is where the court finds that a trustee has “misconducted himself in the administration of the trust”.
[31] It is, however, clear that the court is not limited to those five situations as s 51(2) commences with the words “In particular and without prejudice to the generality of the foregoing provision” (that is, s 51(1)). It is also evident from case law that the criteria under which the court may act pursuant to s 51(1) is somewhat broader that simply misconduct.1 The main guide to the exercise of the court’s power must be the welfare of the beneficiary or beneficiaries. Other guiding principles include the settlor’s intentions, the promotion of the purposes of the trust and neutrality between beneficiaries.
Discussion
[32] I have no doubt that Mr Jellyman loves his mother and does care in a general way for her health, well-being and welfare. I also acknowledge that Mr Jellyman has provided significant support to his mother over the years. That support is, however, now much less. Mr Jellyman explains:
When my ability to care for my Mother, as I had been, was removed by the insistence of my Sister that all four Siblings needed to be holders of the POA and that, I believe, she also gained power of my Mothers bank account by coercing my two Brothers into supporting her, I insisted that all three of my Siblings should then step up and do their share and removed some of my support.
[33] Mr Jellyman says he now visits his mother at least once a week when she is not away, but he no longer looks after her lawn or garden. Nor does he take his mother grocery shopping or to medical appointments, but says if necessary he would resume giving his mother such assistance. Mr Jellyman does acknowledge that he has been chastised for his language and rebuked for how he speaks to his mother, but says that at no time has she indicated he should not visit, nor that she is afraid of his presence.
1 For example, see Vincent v Stewart HC Auckland M671-IM02, 17 April 2003 at [30] and Powell v Powell [2014] NZHC 476 at [54].
[34] The guiding principle for the court in determining this application is the welfare of Mrs Jellyman. Here I accept the evidence of Mrs Jellyman’s doctor, that from a health perspective, maintaining the independence of the elderly where they can manage with proper support is a desirable outcome. He is of the opinion that Mrs Jellyman’s ability to remain independent will be curtailed if she continues to live alone in a house in Hastings with support only from a person who she apparently finds intimidating and therefore does not want to rely upon.
[35] I also accept the evidence from a number of different persons, both family members and others, that Mrs Jellyman does wish to move to Tauranga to be near her only daughter, who can offer close and continuous support to her. I note that Mr Jellyman acknowledges getting angry with his mother and abusing her when she tried to express her wishes to the two real estate agents because he felt she was merely expressing his sister’s wishes. This does indicate to me something of a closed mind.
[36] While Mr Jellyman now says he will agree to the sale of the house, his past conduct does not give me any confidence that the sale process will proceed smoothly if he remains a trustee under his father’s will. Even if the sale process did proceed smoothly, Mr Jellyman remains of the view, without any evidence, that his mother has been coerced into making the statements in her two affidavits that she wishes to move to Tauranga. Thus, I can foresee real difficulty in reaching agreement as to where Mrs Jellyman is then to live. Mr Jellyman wishes, and intends “to have her placed” in Mary Doyle Retirement Village. I am of the view that Mrs Jellyman should be free to make her choice about where she lives after the house is sold. In that regard, Mrs Jellyman’s clearly expressed wish is to move to Tauranga.
[37] The settlor of the trust, Mrs Jellyman’s husband, clearly intended that she should have the benefit of living in the family home or its substitute for as long as she was able. His intentions may be thwarted if Mrs Jellyman is not able to receive close and continuous support from family members.
[38] I am also of the view that the sale of the house in Hastings and the purchase of another one in Tauranga will not disadvantage the ultimate beneficiaries, being the testator’s children. In his affidavit sworn on 19 May 2017, Mrs Jellyman’s solicitor,
Mr Dent, states that he is not aware of any difference in the property market in Tauranga rather than Hawkes Bay that might potentially cause a loss to the trust that would not otherwise occur.
[39] In all the circumstances, I found that Mrs Jellyman has proved the case for replacement of her son as a trustee under her husband’s will and give judgment for her. I make the following orders:
(a)An order removing the defendant as a trustee of the trust created by clause 4 of the will of John Malcolm Jellyman.
(b)An order appointing Heather Maureen Jenkins as a trustee in the estate of John Malcolm Jellyman in place of the defendant.
(c)An order vesting the property, more particularly described as, first, one twentieth share in an estate in fee simple in 9149 square metres, more particularly described as Lot 3 on Deposited Plan 25048, and secondly, as Flat 8 on Deposited Plan 25525, being together contained in composite computer register title HBV4/713, in the plaintiff Hazel Marie Jellyman and Heather Maureen Jenkins.
(d)An order for costs against the defendant on a 2B basis together with reasonable disbursements as fixed by the Registrar.
Woolford J
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