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Jensen v Jensen

Jensen v Jensen

Case [2019] NZHC 329 4 March 2019

Unconscionable Conduct

Admissibility of Evidence

Trusts & Equity

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2018-470-128

[2019] NZHC 329

UNDER Part 18 High Court Rules 2016

IN THE MATTER

of an application to remove a Trustee under the Court’s inherent jurisdiction

IN THE MATTER

of the estate of Doris May Jensen

BETWEEN

PETER GRAHAME JENSEN

Plaintiff

AND

LESLIE KEITH JENSEN

Defendant

Hearing: 14 December 2019

Counsel:

MP Ward-Johnson for plaintiff

No appearance for or on behalf of defendant

Judgment:

4 March 2019

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 4 March 2019 at 2:30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Ussher Lawyers, Whangamata (M Ussher)

Jensen v Jensen [2019] NZHC 329 [4 March 2019]

[1] The plaintiff, together with his brother the defendant, are executors of their mother’s estate.1 The main asset of the estate is Mrs Jensen’s residential home (the Property). Leslie has occupied the Property, on a rent-free basis, since at least 2012.

[2] Peter applies to remove Leslie as executor/trustee of Mrs Jensen’s estate, as well as an order for vacant possession of the Property. Peter says Leslie refuses to cooperate with him in administering the estate. Peter also says vacant possession of the Property is necessary so that it can be readied for sale, sold and the proceeds distributed in accordance with Mrs Jensen’s will. Peter says Leslie’s continuing intransigence and occupation of the Property is preventing this from occurring.

[3] Despite being served with these proceedings, Leslie has taken no steps in relation to them and the matter therefore proceeded by way of formal proof.

Factual background

[4] Leslie and Peter are two of Mrs Jensen’s three children. Sadly, their brother Neil died in 1975.

[5] Mrs Jensen died on 13 May 2017 leaving a will dated 23 January 2008. Probate of the will was granted by the High Court on 16 November 2017 and Peter and Leslie were appointed administrators of the estate. As noted in the introduction to this judgment, the estate’s primary asset is the Property.

[6] In her will, Mrs Jensen gave the whole of her estate to Peter and Leslie upon trust, to pay her debts and funeral expenses, and then to divide the remainder of her estate into three equal shares; one share to be paid to each of Peter and Leslie, with the third share being divided equally between Neil’s four children. Mrs Jensen therefore intended each of her three sons (and in Neil’s case, his children) to benefit equally from her estate.

1 To avoid confusion between the brothers, I will refer to the plaintiff as “Peter” and the defendant as “Leslie”. I mean no disrespect by referring to the parties by their first names. I will refer to their mother as “Mrs Jensen”.

[7] Mrs Jensen went into residential care in 2012. At that time, she took a number of steps to organise her affairs. It seems Leslie had been living…

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 Jensen v Jensen

Details

AGLC: Jensen v Jensen [2019] NZHC 329
Case: [2019] NZHC 329
Decision Date: 4 March 2019

CaseChat Overview and Summary

The case of Jensen v Jensen involved a dispute between Peter Jensen and Leslie Jensen, the co-executors of their late mother's estate. The main asset of the estate was Mrs Jensen's residential home, which Leslie had occupied rent-free since at least 2012. Peter sought an order to remove Leslie as executor and trustee of the estate and for vacant possession of the property, as Leslie refused to cooperate in administering the estate. The court was required to decide whether Leslie should be removed as an executor and trustee of the estate and whether an order for vacant possession should be made. The court held that Leslie's intransigence and refusal to cooperate in administering the estate justified his removal as an executor and trustee. The court also held that the letter of agreement between Leslie and his mother, which gave Leslie the right to use the property, did not give him the right to continued occupation after Mrs Jensen's death. The court made an order removing Leslie as an executor and trustee of the estate and for vacant possession of the property, effective two months from the date of the judgment. The court also ordered that Peter could seek costs from Leslie. The court's decision was based on the welfare of the beneficiaries, the security of trust property, and the satisfactory execution of the trusts. The court held that Leslie's failure to engage with his brother on the proper administration of Mrs Jensen's estate and to deliver up vacant possession of the property was adversely affecting his ability to properly and promptly carry out his duties as co-executor and trustee of his mother's estate. The court also held that Leslie's continued occupation of the property was preventing the estate from being dealt with in an orderly way and that a significant debt was owed by the estate to the Crown, with the estate being in breach of a loan agreement. The court held that it was in the interests of all beneficiaries for the property to be sold without further delay.

Orders