Kellerman v Kellerman-Thornton

[2020] NZHC 2297

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-250

[2020] NZHC 2297

UNDER

Sections 21 and 44 of the Administration Act 1969

IN THE MATTER

of an application to remove an executor from office and ancillary orders

BETWEEN

BRENDAN EUGENE KELLERMAN

Applicant

AND

MARGARET YVONNE KELLERMAN- THORNTON

Respondent

Hearing:	13 August 2020
Appearances:	J J Pietras and B Sheehan for the Applicant T R Mounsey for the Respondent
Judgment:	4 September 2020
Reissued:	14 September 2020

JUDGMENT OF COOKE J

Table of Contents

Background  [3]

The concerns giving rise to the applications  [6]

Removal of executor  [15]

Executor expenses and benefits  [20]

Application to the facts of this case  [26]

Airfares  [29]

Hotel accommodation  [32]

Meals  [34]

The husband’s airfares, accommodation and meals  [35]

What level of costs should be allowed?  [36]

Claim for an account  [41]

KELLERMAN v KELLERMAN-THORNTON [2020] NZHC 2297 [4 September 2020]

Application in the present case  [48]

Should the executor be removed?  [53]

The relevant considerations  [54]

Two additional concerns  [61]

Who should be the executor?  [67]

Conclusion and orders  [72]

[1]By application dated 22 May 2020 Brendan Kellerman seeks orders:

(a)Removing his sister, Margaret Kellerman-Thornton as executor of the estate of their father, the late John Kellerman, and appointing Perpetual Trust Ltd as replacement executor.

(b)Requiring Mrs Kellerman-Thornton to exhibit on oath an accurate inventory and account of Mr John Kellerman’s estate.

(c)Requiring Mrs Kellerman-Thornton to account for any expenses that were not properly incurred in her administration of Mr John Kellerman’s estate.

[2]        Mrs Kellerman-Thornton has filed a notice of appearance for ancillary purposes dated 6 July 2020. In it she suggests that she does not oppose the orders and will abide the decision of the Court, but appears to be heard on certain specified matters. The specified matters question whether the grounds for granting the orders sought are established. Her affidavit, and her counsel’s submissions argue that they are not. In short she substantively opposes the orders notwithstanding the form of the notice she has filed.

Background

[3]        Mr John Kellerman died  on  30  December  2018.  He  was  survived  by  Mrs Julianna Kellerman and his three children — the applicant Brendan, the respondent Margaret and their brother Alexander. Julianna and John were both Hungarian, and following his death Julianna has returned to Hungary. She was John’s third wife, and stepmother to the three children. They had been married for approximately 10 years.

[4]        Brendan was estranged from his father. He explains in his affidavit that he had not been in contact with him before his death for about 20 years, which he says was due to his difficult upbringing. In addition Alexander has suffered significant health issues over his life. The evidence is not clear on the full circumstances, but it appears he suffered a further significant medical event after John’s death and has become significantly disabled as a consequence. Brendan and Margaret have been in dispute in the Family Court as…