Jones v Jones - [2024] NZHC 3491

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2022-442-52

[2024] NZHC 3491

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

JASON RAYMOND JONES

Second Respondent

Hearing: On the Papers

Counsel:

A M Holloran for Applicant

D R Weatherley for Respondents

Judgment:

21 November 2024

JUDGMENT OF McQUEEN J

[1] In a judgment dated 7 June 2023, Isac J granted an application by Ms Laurel Jones for an order under s 21 of the Administration Act 1969 removing all three executors of the estate of Mr Basil Jones (the Judgment).1 Those executors were the applicant and both respondents in this proceeding. It is not necessary here to describe the dispute in any detail other than to say that it is between Ms Laurel Jones, the surviving wife of Mr Basil Jones, and Ms Cindy Jones and Mr Jason Jones, Mr Basil Jones’ two adult children from a previous relationship.

1 Jones v Jones [2023] NZHC 1408, at [34].

JONES v JONES [2024] NZHC 3491 [21 November 2024]

[2] In the Judgment, Isac J recorded that a question remained as to the appropriate replacement executor. The Judge directed that:2

(a)the plaintiff file a consent to act from the Public Trust within 10 working days of the date of the Judgment;

(b)if such consent was forthcoming, the Court would make an order appointing the Public Trust on the papers;

(c)if such consent was not forthcoming, the parties file memoranda within 15 working days identifying an independent professional executor to be appointed, and the Court would determine the issue on the papers.

[3]Joint memoranda of counsel have been filed dated 13 and 20 November 2024.

[4] Counsel advise that the consent of the Public Trust was not able to be filed within the timeframe anticipated in the Judgment. Further, both an appeal and a cross- appeal were filed against the Judgment. The appeals were due to be heard in October 2024.

[5] Counsel advise that the parties have now resolved all issues between them, including as to the administration of the estate, the identity of the executors and Ms Laurel Jones’ applications under the Family Protection Act 1955 and Property (Relationships) Act 1976. The parties have entered a deed of family arrangement, a copy of which is annexed to the first joint memorandum of counsel.

[6] The deed of family arrangement resolves the conflicts between the executors on the basis that, looking forward, Ms Cindy Jones and Mr Jason Jones are to carry out the executor role for the estate of Mr Basil Jones and Ms Laurel Jones will not take such a role.

[7] Counsel submit that this Court is not functus officio because the determination of appointment of an independent professional executor has not yet been made.

2 At [35].

[8]Accordingly, the parties request that the following orders are made by consent:

(a)confirming 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 Jones v Jones

Details

AGLC: Jones v Jones [2024] NZHC 3491
Case: [2024] NZHC 3491
Decision Date: 21 November 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the Nelson Registry considered a matter involving the estate of Basil Raymond Jones, between Laurel Dawn Jones and Cindy Maria Jones and Jason Raymond Jones. The proceedings originated from a judgment by Isac J, who had removed all three executors of Mr Basil Jones' estate. The current case concerns the appointment of new executors following the resolution of disputes between the surviving wife, Laurel Dawn Jones, and the two adult children from a previous relationship, Cindy Maria Jones and Jason Raymond Jones. The High Court was required to decide whether it retained jurisdiction to appoint new executors following the parties' agreement.

The court noted that despite the parties' agreement and the filing of memoranda regarding the appointment of an independent professional executor, the determination of such an appointment had not yet been made. The court held that it was not functus officio because the jurisdiction to appoint new executors had not been exhausted. The court concluded that the original order removing the executors meant that reappointing Cindy Maria Jones and Jason Raymond Jones as executors was necessary, and that confirming Laurel Dawn Jones' exclusion from the executor role was also appropriate for clarity. The court ordered that Laurel Dawn Jones be removed as an executor, and that Cindy Maria Jones and Jason Raymond Jones be appointed as executors and administrators of the estate. The court also directed that a notice of discontinuance of the proceeding be filed within five working days.

Orders