IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2022-442-000052
[2023] NZHC 1408
UNDER the Administration Act 1969 IN THE MATTER
of the ESTATE OF
BASIL RAYMOND JONES
BETWEEN
LAUREL DAWN JONES
Applicant
AND
CINDY MARIA JONES
First Respondent
AND
JASON RAYMOND JONES
Second Respondent
Hearing: 30 May 2023 Counsel:
A M Halloran for Applicant
D R Weatherley for Respondents
Judgment:
7 June 2023
JUDGMENT OF ISAC J
[Application to remove executors]
Introduction
[1] Mr Basil Jones died on 10 March 2021. This proceeding concerns a dispute between his surviving wife, Laurel, and Mr Jones’ two adult children of a previous relationship, Cindy and Jason.1
1 Given the shared surnames of the deceased, and the parties, I will refer to them throughout this judgment by their first names. I mean them no discourtesy by doing so.
JONES v JONES [2023] NZHC 1408 [7 June 2023]
[2] Shortly before his death, Basil completed a new will. He appointed Laurel, Cindy and Jason as his executors and, broadly, divided his estate between the three of them.
[3] Laurel has made an election to pursue a claim against Basil’s estate under the Property (Relationships) Act 1976. She has also brought a claim for provision under the Family Protection Act 1955. The effect of Laurel’s election to pursue a relationship property claim means that she has renounced her entitlement as a beneficiary of Basil’s estate.2
[4] Laurel accepts that she should no longer serve as an executor given the conflict between her personal interests and her duties as an executor. However, in this proceeding she claims that Jason and Cindy should also be removed under s 21 of the Administration Act 1969. She argues that a combination of factors, including delay in the administration of the estate, the actions of her co-executors and their hostility towards her require the appointment of an independent executor.
[5] The issue I must determine is whether it is expedient to remove all three executors in terms of s 21.3
Background
[6] There is very little dispute between the parties about the relevant facts. Where they differed is on their interpretation of those events and their significance, if any, to the exercise of the Court’s discretion.
[7] According to the evidence, Cindy and Jason’s mother had been married to Basil. However, in 1989 he began a de facto relationship with Laurel and was eventually married to her in 2004. It follows that Laurel and Basil had been in a relationship for 32 years at the time of his death.
2 Property (Relationships) Act 1976, s 76(1).
3 In Vlaar v Van Der Lubbe [2016] NZHC 2398 at [26], Clark J referred to the “significant” discretion the Court holds under s 21.
[8] Prior to the commencement of his relationship with Laurel, it seems Basil owned a family home in Seaton Street, Nelson, together with virtually all of the shares in a company that operated a motor vehicle sales business, Sun City…
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- AGLC
- Jones v Jones [2023] NZHC 1408
- Case
- [2023] NZHC 1408
- Decision Date
CaseChat Overview and Summary
In reaching its decision, the court considered the executors' failure to gather and secure the estate's assets, particularly the shares in Sun City Motors Limited, and Cindy's unilateral actions in transferring these shares into her own name and appointing herself as the sole director. The court was also concerned about the potential conflict of interest this created and the risk of Cindy using her position to delay resolution of Laurel's claims against the estate. Additionally, the court noted Jason's physical absence from New Zealand, which raised concerns about his ability to actively participate in the estate's administration. The court concluded that the removal of all three executors was necessary to ensure the estate's affairs were properly managed and that Laurel's claims were addressed in a manner that served the best interests of all beneficiaries. The court ordered the removal of the executors and directed the parties to propose a replacement executor within a specified timeframe. Laurel was granted costs on a 2B basis.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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