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…
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- [2019] NZHC 329
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