Landon-Lane v Hart - [2022] NZHC 1358

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2022-406-006

[2022] NZHC 1358

UNDER Section 21 of the Administration Act 1969

IN THE MATTER

of an application for orders for the removal of executors and vesting orders

BETWEEN

MARY-ANNE LANDON-LANE

Applicant

AND

MARIE DAWN HART AND MARK WILLIAM WALKER

Respondents

Hearing: 23 May 2022

Appearances:

S F Gaines for the Applicant

Judgment:

9 June 2022

JUDGMENT OF COOKE J

[1] By application dated 8 March 2022 the applicant seeks orders removing her and the respondents as executors of the estate of their mother, Mrs Mary Walker, and appointing Mr Charles James Murdoch, solicitor of Blenheim, as the replacement sole executor.

[2] The application is supported by affidavits from the applicant and Mr Murdoch. It was commenced by an application for leave to bring the proceedings as an originating application under Part 19 of the High Court Rules 2016, and for directions as to service. On 5 April Gendall J gave such leave together with directions as to service, and directions requiring the respondents to file their opposition within 20 working days of service with a case management conference to then be convened.

LANDON-LANE v HART [2022] NZHC 1358 [9 June 2022]

[3] An affidavit of service sworn 20 May 2022 confirming service on 13 April has been filed. The respondents’ opposition was to be filed within 20 working days, that is by 17 May. No opposition to the application has been filed.

[4] The application was called before me on 23 May 2022. There was no appearance for the respondents. I directed the filing of written submissions in support of the application with an indication that I would then deal with the application on its merits.

Relevant background

[5] Mrs Walker died in June 2017. Probate was granted July 2020. The applicant and respondents are three siblings named as co-executors and the residual beneficiaries in equal shares. The assets of the estate are limited to landholdings. Mrs Walker also had Māori landholding interests, but they do not form part of the assets of the estate. The assets of the estate involve three main categories of land:

(a)a residential property in Brewer Street, Blenheim;

(b)bare land known as Okoha at Port Gore; and

(c)shares of other land at Port Gore.

[6] The co-executors are currently deadlocked and cannot act unanimously in administering the estate. The deadlock arises because of divergent economic and personal interests. The initial solicitors for the estate were unable to advance probate. The current solicitors took over from August 2019 in accordance with a document signed by all three siblings recording their instructions in relation to the administration of the estate. This recorded that they would cooperate in the administration of the estate, but acknowledged that the solicitors might need to apply to the Court to remove the executors if the disagreements continued.

[7] The applicant explains in her affidavit that the disagreements have continued, and the executors remain…

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.

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Details

Case: [2022] NZHC 1358
Decision Date: 9 June 2022

CaseChat Overview and Summary

The case of Landon-Lane v Hart involved an application by Mary-Anne Landon-Lane to remove herself and the respondents, Marie Dawn Hart and Mark William Walker, as executors of the estate of their deceased mother, Mrs Mary Walker. The applicant sought to have Charles James Murdoch, a solicitor from Blenheim, appointed as the sole executor of the estate. The respondents did not oppose the application, and the case proceeded on an uncontested basis. The High Court of New Zealand considered the legal issues and found that the deadlock between the co-executors was preventing the proper administration of the estate, which included landholdings in Blenheim and Port Gore. The court exercised its discretion under the Administration Act 1969 to remove the existing executors and appoint Mr Murdoch as the sole executor to ensure the estate was properly administered. The court also made orders regarding the vesting of the estate's properties in Mr Murdoch, and the allocation of the costs of the application. The orders did not affect the Māori landholding interests that were not part of the estate.

The court found that the co-executors were deadlocked due to divergent economic and personal interests, which prevented the proper administration of the estate. The deadlock was acknowledged in the written instructions signed by all three siblings, which also contemplated the possibility of the court appointing a replacement sole executor. The court noted that the wishes of the testator, as evidenced by the appointment of the co-executors, were to be considered but ultimately the question was what was expedient in the interests of the beneficiaries. The court found that the removal of the existing executors and the appointment of Mr Murdoch as the sole executor was necessary to ensure the proper administration of the estate and the protection of the beneficiaries' interests.

Orders