Lewis v Vincent HC Auckland CIV 2006-404-2312
[2007] NZHC 753
•6 August 2007
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2006-404-2312
UNDER the Trustee Act 1956
IN THE MATTER OF the Estate of VALARIE JOY ALLEN (Deceased)
BETWEEN ROWENA MARGARET LEWIS AND PETER RAYMOND LEWIS
Plaintiffs
AND AVIONNE JOY VINCENT First Defendant
AND PETER RAYMOND VINCENT Second Defendant
AND PUBLIC TRUST Third Defendant
Hearing: 30 May 2007
Appearances: K G Davenport and R M Lewis for Plaintiffs
G Mercer for First Defendant
J McCartney for Second Defendant
H Fulton for Third Defendant
Judgment: 6 August 2007 at 4:30pm
(RESERVED) JUDGMENT OF ANDREWS J
This judgment was delivered by Justice Andrews on 6 August 2007 at 4:30pm pursuant to r 540(4) of the High Court Rules.
………………………………… Registrar/Deputy Registrar
Date: ………………………
Counsel: K Davenport, PO Box 141, Shortland St, Auckland (for Plaintiff)
G Mercer, PO Box 26-436, Epsom, Auckland (for First Defendant)
J McCartney, PO Box PO Box 47114, Ponsonby, Auckland (for Second
Defendant)
H Fulton, PO Box 5577, Wellesley St, Auckland (for Third Defendant) Solicitors: R M Lewis, P Box 35 361, Browns Bay, Auckland
Public Trust, Private Bag 17 906, Auckland
Zeljan Unkovich, PO Box 113010, Newmarket, Auckland
R M LEWIS AND P R LEWIS V A J VINCENT AND ORS HC AK CIV 2006-404-2312 6 August 2007
Introduction
[1] The plaintiffs have applied to the Court for an order pursuant to s 75 of the Trustee Act 1956 for an order barring the first, second and third defendants from bringing any further claim against the Estate of Mrs Valarie Joy Allen.
[2] In the interlocutory stages of the plaintiffs’ proceeding it became apparent that there was a dispute between the plaintiffs, the first defendant and the second defendant as to whether the first defendant is entitled to interest on her legacy and if so, at what rate, over what period, and as to what portion of the legacy. Accordingly, the plaintiffs also seek directions under s 66 of the Trustee Act as to the first defendant’s entitlement to interest.
[3] It is appropriate to deal first with the question of interest. The application for a barring order can then be dealt with by way of a consent order.
Background
[4] Mrs Allen died on 31 January 2001. The plaintiffs are the trustees and executors of her estate, having been granted probate on 24 October 2001.
[5] The first defendant, Avionne Vincent, was Mrs Allen’s daughter. She received a legacy of $200,000 under Mrs Allen’s Will.
[6] The second defendant is Peter Vincent, Mrs Allen’s son and Avionne Vincent’s brother. He is the residuary beneficiary of the Valarie Allen Estate. Peter Vincent is also one of the plaintiffs, in his capacity as trustee and executor of the estate.
[7] Peter and Avionne Vincent are the children of Mrs Allen’s first marriage, to Cedric Ray Vincent. Cedric Vincent died in 1967. The third defendant, the Public Trust, is trustee of Cedric Vincent’s estate.
[8] Mrs Allen left an estate of approximately $2,000,000, comprising cash and loans forgiven under the Will. At the time of her death, the cash portion of the estate (approximately $640,000) was held on various term deposits, with UDC.
[9] Since February 2003, the estate funds have been held on term deposits through a solicitors’ trust account, earning interest at rates varying from 5% to more than 7%. Interest has not been reinvested. I was advised that resident withholding tax has been paid on interest earned.
[10] The administration of the Cedric Vincent and Valarie Allen Estates has been characterised by disputes and litigation. It is not necessary, for the purposes of this proceeding, to set out details of the litigation over the Cedric Vincent Estate. It is sufficient to record that on 9 February 2006 Ellen France J made an order, on the application of the Public Trust pursuant to s 75 of the Trustee Act, barring Avionne Vincent and her co-trustee in a family trust (as first defendants) and Ms Vincent in her personal capacity (as second defendant) from bringing and pursuing claims against the Cedric Vincent Estate.
[11] In relation to the Valarie Allen Estate, I was advised that on 9 February 2001
Ms Vincent lodged a caveat against probate of Mrs Allen’s Will. The caveat was withdrawn on or about 24 October 2001. In his judgment as to costs delivered on 28
November 2001, O’Regan J ordered Ms Vincent to pay costs of $8,000, together with disbursements of $245, to be paid out of her share of the Valarie Allen Estate.
[12] On 23 October 2002 Ms Vincent issued proceedings under the Family Protection Act 1955, seeking further provision from the Valarie Allen Estate. The proceeding was heard before Randerson J on 12 September 2005, and judgment delivered on 22 February 2006. Ms Vincent’s application for further provision was dismissed. In his judgment as to costs, delivered on 26 April 2006, Randerson J ordered that each of Avionne and Peter Vincent (in his personal capacity) should bear their own costs, while the trustees’ costs were to be borne by the residuary estate.
[13] In April 2006 Ms Vincent appealed, out of time, against Randerson J’s judgment. She abandoned the appeal in October 2006, and was ordered to pay costs of $1,000 to the estate.
[14] On 14 August 2006 Ms Vincent executed a Deed of Assignment pursuant to which she assigned $64,825 of her legacy from the Valarie Allen Estate to Patterson Hopkins, solicitors of Auckland.
[15] Following deduction of the costs awards in respect of the caveat and abandoned appeal, and the assignment to Patterson Hopkins, the balance of the legacy to Ms Vincent is $126,175.
[16] In April 2005 the plaintiffs served each of the defendants with notices pursuant to s 75 of the Trustee Act. The notices required the defendants to bring any proceedings that they might have in respect of claims against the Valarie Allen Estate within three months. None of the defendants brought any proceeding within the specified period.
Interest on a legacy
[17] The plaintiff executors seek directions to determine whether interest in payable on Avionne Vincent’s legacy and, if so, at what rate, for what period, and on what portion of the legacy it is payable.
[18] Section 39 of the Administration Act 1969 deals with interest on legacies. As relevant, it provides:
39 Interest on legacies and annuities
(1) In any case where a legacy is charged upon both land and chattels, unless the will otherwise provides, interest shall be payable on the legacy and be a charge on the land and chattels in accordance with the rules of law that would apply if the legacy were charged upon the land only.
(2) While interest is payable on a legacy or on arrears of an annuity, in accordance with the will or instrument pursuant to which the legacy or annuity is payable or any enactment or rule of law, unless the will or instrument otherwise provides or the Court otherwise orders, the interest on the legacy or arrears of the annuity is payable—
(a) at the rate of 7.5% per annum; or
(b) at any other rate that may from time to time be fixed for the purposes of this section by the Governor-General by Order in Council.
(2A) However, if an administrator (in accordance with any power conferred on the administrator in that behalf) appropriates property in or towards satisfaction of a legacy (other than an annuity),—
(a) the legatee is entitled to the income from the property so appropriated;
and
(b) interest is not payable out of any other part of the estate on so much of the legacy as has been satisfied by the appropriation.
[19] Rule 403 of the High Court Rules is also relevant:
403 Interest on legacies
Where a judgment or order is made directing an account of legacies, interest shall be computed on such legacies, unless otherwise ordered, at the rate for the time being prescribed by or under section 39 of the Administration Act
1969 from the end of one year after the death of the deceased, unless any other time of payment or rate of interest is directed by the will, and in that case according to the will.
[20] The issues arising out of the arguments for Avionne and Peter Vincent are:
a) Is interest payable on a legacy as of right, or does the Court have a discretion to order that interest should not be paid on a legacy?
b) If the Court has a discretion as to whether interest is payable, then:
i) What factors should be taken into account in the exercise of the discretion?
ii) In this case, does service of the s 75 Notice and the expiry of the period of notice bar payment of interest?
c) If interest is payable in this case (whether as of right, or as the result of the exercise of the Court’s discretion), then:
i) Over what period is it payable: does the Court have a discretion to extend the “executor’s year” (the twelve month period after the testator’s death)?
ii) At what rate is interest payable?
iii) Is interest payable on the portion of the legacy assigned to
Patterson Hopkins?
Is there a right to interest? – the effect of s 39 of the Administration Act
[21] Ms McCartney argued for Peter Vincent that the proper interpretation of s 39 is that a legatee does not have an absolute entitlement to interest: the Court has a discretion both as to whether interest should be paid on a legacy, and as to the rate at which interest, if any, should be paid. Mr Mercer argued for Avionne Vincent that s 39 should be interpreted as giving the Court a discretion only as to what rate of interest is to be applied. Neither counsel was able to cite any authority directly on point.
[22] It is clear from a review of relevant authorities that there is, under common law, a “general rule of justice and convenience” that if a legacy remains unpaid after the end of the executor’s year, then interest must be paid on it.
[23] The report of Maxwell v Wettenhall1 records the issue in that case as having been where and from what time a legacy shall carry interest. Lord Macclesfield set out the following principles:
1st, If one gives a legacy charged upon land which yields rents and profits, and there is no time of payment mentioned in the will, the legacy shall carry interest from the testator’s death, because the land yields profit from that time.
2dly, But if a legacy be given out of a personal estate, and no time of payment mentioned in the will, this legacy shall carry interest only from the end of the year, after the death of the testator
1 Maxwell & Wettenhall (1722) 2 P Wms 26; 24 ER 628
[24] In Sitwell v Bernard2 the Lord Chancellor, Lord Eldon, set out the following general rules and principles, in relation to the executors’ year and interest:3
This Court will look at principles of convenience. Where an estate is given in various legacies, and the residue is given, it is a rule of convenience, that authorises this Court to say, for there is no language in the will for it, that those legacies shall be payable at the end of a year from the death of the testator; because, as a general rule it may be taken, that the personal estate may be collected within a year; though in many instances that falls enormously to the prejudice of the residuary legatee. … In many cases the Court supposes the residue to carry interest; though in many cases the residue does not carry interest; … But now it is a general rule that where no interest is given by the will, except where it is given by way of maintenance, it is only to be allowed at 4 per cent. From the end of the year; though it may appear to have produced in the period interest at 5 per cent.
[25] In Webster v Hale,4 the testator’s will did not specify that interest was to be paid on legacies. The plaintiffs argued that legacies of share stock carried interest from the testator’s death. The Master of the Rolls accepted the trustees’ argument that the legacies were pecuniary, and that interest was, therefore, payable only after a year.
[26] The question of interest was again considered in Wood v Penoyre.5 The
Master of the Rolls, Sir W. Grant said, at 333; 318:
Wherever legacies are given out of personal estate, consisting of outstanding securities, those legacies cannot actually be paid, until the money due upon such securities is actually got in: but by a rule, that has been adopted for the sake of general convenience, this Court holds the personal estate to be reduced into possession within a year after the death of the testator. Upon that ground interest is payable upon legacies from that time, unless some other period is fixed by the will. Actual payment may in many instances be impracticable within that time: yet in legal contemplation the right to payment exists and carries with it the right to interest.
[27] The general principle was again stated in Foster v Wyles6 by Farwell J, as follows, at 315:
It is a well established rule that if a pecuniary legacy is for any cause not paid over to the legatee at the end of one year from the testator’s death, the
2 Sitwell v Bernard (1801) 6 Ves Jun 520; 32 ER 1174
3 Fn 2, at 539; 1182
4 Webster v Hale (1803) 8 Ves Jun 411; 32 ER 414
5 Wood v Penoyre (1807) 13 Ves Jun 326; 33 ER 316
6 In re Wyles; Foster v Wyles [1938] 1 Ch 313
legatee is entitled to interest on his legacy from that date up to the date of payment.
[28] Further, in In re Pollock7 Bennett J observed, at 340:3
In the ordinary case of a pecuniary legacy without any direction as to payment of interest on it, the legacy, being vested, carries interest at the expiration of one year from the death of the testator.
[29] In New Zealand it has been accepted that interest is payable on legacies, after the expiry of the executor’s year: see for example In re D’Oyly,8 where Reed J accepted that where no interest was provided for in the will, the general rule is to allow interest on legacies from the end of the executor’s year. In In re Hoey,9 Smith J said, at 905:
Even though the conversion of an estate may be delayed for a long period, and even though a legacy may be payable out of a particular fund which is not got in until after a long interval, the general rule of administration is that, when no time for payment is fixed by the will, the legacy is payable at, and therefore bears interest from, the end of a year after the testator’s death.
[30] More recently, in Maassen v Clough & Kenyon & Ors10 the trustees of the estate had sought directions under s 66 of the Trustee Act as to interest payable on a legacy. Mackenzie J said, at [5]:
… the legacy has been payable throughout the period, and I can see no reason for departing from the basic regime prescribed by the Administration Act … Under section 39, a legacy is to carry interest from the end of the executor’s year (by operation of the common law rules) at the rate prescribed in s 39(2) …
[31] In my view, where the will is silent on the question of interest, the weight of authority is clearly in favour of a general right to interest on a pecuniary legacy. Such interest is payable from the end of the executor’s year. This general rule of justice and convenience, developed by the courts of equity, has been applied since at least the early eighteenth century, and has been adopted in New Zealand. Judgments from the United Kingdom and New Zealand assume the existence of this right. It is
7 In re Pollock; Pugsley v Pollock [1943] 1 Ch 338
8 In re D’Oyly,(deceased), McKellar v D’Oyly [1932] NZLR 1591
9 In re Hoey (deceased), Gordon v Russell and Others [1944] NZLR 900
10 In re Kenyon, Maassen v Clough & Kenyon & Ors CIV 2006-454-241, HC Palmerston North, 24
July 2006, MacKenzie J
clear that the basis of the rule is that it would be unfair for the residuary legatees to benefit from any delay by retaining interest earned by the estate: see Foster v Wyles.11
[32] However, it is not clear from the cases whether the rule of convenience is an absolute entitlement, or a general rule that can be displaced in the particular circumstances of the case. The latter approach appears to have been taken in Cook v Cook12 where Panckhurst J declined to apply the “normal rule” because the estate had no cash reserves and because the delay in distribution had largely been caused by the plaintiff’s litigation. However, His Honour did not discuss the effect of s 39 of the Administration Act, nor does it appear that any of the authorities referred to above were cited to him.
[33] In the end, in my view the better interpretation of s 39 of the Administration Act is that which accords with the long line of authority. Section 39 clearly contemplates that the Court will exercise some discretion. The authorities fall in favour of a right to interest on legacies from the end of the executors’ year. Accordingly, the better interpretation of s 39 is that unless the will provides otherwise, a legatee has a right to interest on the legacy as from the end of the executors’ year, and the Court has a discretion as to the rate of interest to be awarded in individual cases.
[34] In the light of my conclusion on this issue it is not necessary for me to consider the factors that would be taken into account if there were a discretion to be exercised as to whether interest was payable.
Does service of the s 75 notice, and the expiry of the period of notice bar payment of interest?
[35] It follows from my conclusion that there is a right to interest that a legatee is not required to claim it. Accordingly, I conclude that the payment of interest on a
11 See Fn 7
12 Cook v Cook CIV 2001-418-000004, HC Greymouth, 20 April 2004, Panckhurst J
legacy is not barred by service of a notice under s 75 of the Trustee Act and the expiry of the notice period.
Over what period is interest payable?
[36] The key issue here is whether the Court has a discretion to extend the executor’s year. It is well established that interest is not payable on a legacy until the expiry of the executor’s year. In the present case, the plaintiff executors submitted that their year should be extended so as to exclude the period during which the will was caveated by Avionne Vincent. That is, they submitted that the year should run not from the date of the testator’s death (31 January 2001), but from the date of probate (24 October 2001).
[37] The executor’s year, running from the date of the testator’s death, is referred to in the authorities discussed above: see for example Maxwell v Wettenhall,13
Sitwell v Bernard,14 and Wood v Penoyre.15 The justification for the year, in which
interest is not payable on legacies, is to allow the executor time to ascertain the testator’s estate, marshall the assets, and undertake any necessary administration before being required to pay legacies.16 Its origin was explained by the Lord
Chancellor in Pearson v Pearson,17 as follows:
In case of a legacy charged upon lands, the land yields profit: but that is not the reason that in such case the legacy bears interest immediately. The rule with respect to legacies out of personal estate is taken from the practice in the Ecclesiastical Courts where a year is given to the Executor to collect the effects, and he cannot be called upon to pay before that time, because he cannot know until then what fund there is to pay; in conformity to this, Courts of Equity have proceeded, in the case of legacies out of personal estates.
13 See Fn 1
14 See Fn 2
15 See Fn 516 See Neville’s Law of Trusts, Wills and Administration, a9th edn. LexisNexis, Wellington, 2004 at
15.2, 15.31
17 Pearson v Pearson, Lynch and Others (1802) 1 Sch & Lef 10
[38] The rule has been described as a prima facie, not a fixed, rule.18 The
Chancery Court of Appeal in Grayburn v Clarkson19 described the rule as follows at
606:
The result of the authorities seems to be, that there is no fixed rule that conversion must take place by the end of the year, but that that is the prima facie rule, and that executors who do not convert by that time must shew some reason why they did not do so, and, where the question is distinctly and fairly raised upon the pleadings, there is an onus thrown on the executors to justify the delay.
[39] However, any discretion to “extend” the year appears to be related to issues such as whether an executor is liable for loss occasioned by delay in selling estate assets rather than the question of when interest becomes payable. For example, in Grayburn v Clarkson20 the executors of an estate were held liable for the loss incurred in failing to convert shares within the twelve month period after the testator’s death. The executors did not provide any explanation for the delay so the
Court could not inquire into the circumstances and exercise a discretion to extend the executor’s year.
[40] The plaintiffs’ grounds for arguing for an extension of the year in this case were that the caveat prevented them from obtaining probate and thus they were prevented from taking any steps in the administration of the estate. Their application is opposed by Avionne Vincent, on whose behalf it was argued that there was no evidence that the executors were in any way prejudiced in their ability to realise the estate’s assets.
[41] Mr Mercer submitted that the portion of the estate from which Avionne
Vincent’s legacy was to be paid comprised funds invested by the testator, with UDC.
$100,000 of the funds invested in UDC had been reinvested by the testator in November 2000, for one year, and the balance was “rolled over” on 17 July 2001. His submissions as to those factual details were not challenged by the executors.
18 See The Laws of New Zealand : Administration of Estates Vol II, para 295
19 Grayburn v Clarkson (1868) LR 3 Ch App 605
20 Fn 19
[42] Mr Mercer submitted that even if the caveat had not been lodged, the executors would not have been granted probate in time to deal with the UDC investments upon their maturity. He further submitted that the executors in fact allowed the deposits to remain with UDC until 26 February 2003 (during which time the deposits matured and were reinvested), some 16 months after probate was granted. Accordingly, he submitted, the caveat did not in any way prejudice the executors in realising the assets of the estate, so (even if there is jurisdiction to do so) there is no case for extending the executor’s year.
[43] The executors did not refer to any authority in support of their application to extend the executor’s year. In fact the authorities are to the contrary: unless some other period is fixed by the will, interest is payable from a year after the testator’s death.21 In the present case, no other period was fixed by the will. Accordingly, I find there are no grounds for extending the executor’s year.
At what rate is interest payable?
[44] Section 39 of the Administration Act provides that unless the will otherwise provides, or the Court otherwise orders, interest is payable on a legacy at a specified rate. It is common ground that no rate of interest was specified in Mrs Allen’s will. The issue is whether the Court should order that the rate of interest should be other than the statutory rate.
[45] Section 39(2A) should first be considered. It provides that if an administrator of an estate (in the present case, the executors) has appropriated property in or towards satisfaction of a legacy, then the legatee is entitled to the income from the appropriated property, and interest is not payable out of any other part of the estate on so much of the legacy as has been satisfied by the appropriation.
[46] The plaintiff executors argued that there had been an appropriation of
Avionne Vincent’s legacy, achieved by the placing of the estate’s cash funds on
21 See the authorities referred to at [37],
deposit, in February 2003. Hence, they argued, she should receive as interest only as much as the funds actually earned.
[47] Mr Mercer argued that there had been no appropriation. An appropriation could have been made pursuant either to the statutory power given by s 15(1) of the Trustee Act, or to a power conferred by the will. Section 15(1)(j) of the Trustee Act provides that a trustee may:
Appropriate any part of the property in or towards satisfaction of any legacy payable thereout or any share thereof (whether settled, contingent, or absolute) to which any person is entitled, …
[48] However, s 15(1)(j) goes on to provide that before any such appropriation is effectual, notice of it must be given to “all persons of full age and full mental capacity who are interested in the appropriation”. No such notice was given in the present case. I accept Mr Mercer’s submission that there has, therefore, been no appropriation pursuant to s 15(1)(j).
[49] Mrs Allen’s will contains a power of appropriation in clause 13(e), where her
Trustee is given the power:
TO TRANSFER appropriate and partition any real or personal property forming part of my estate to or towards the share of any person or persons in my estate under the trusts of this my Will, ….
[50] I accept Mr Mercer’s submission that an appropriation requires an act of “giving to” or “setting aside” of part of the estate towards a legacy. That is clear from the context in which the word “appropriate” appears in clause 13(3), where it is linked with the words “transfer” and “partition”. In my view, where the entire cash assets of the estate are placed on interest-bearing deposit, it cannot be said that there has been an appropriation of a portion of those cash assets to a specific legacy.
[51] Accordingly, I find that there has been no appropriation by the plaintiffs towards Avionne Vincent’s legacy. Section 39(2A) of the Administration Act does not, therefore, apply in this instance. It is still necessary, however, to decide whether the statutory rate of interest should apply, or whether the Court should order that a different rate should apply.
[52] There is a considerable difference between the amount that would be payable if the statutory rate were applied (11% pa up to 22 October 2003, 7.5% pa thereafter), and interest actually earned on the funds held on deposit (between 5% pa and 7% pa while invested on interest-bearing deposit, less than that while invested with UDC).
[53] The plaintiffs submitted that, if I were to order that interest is payable on Avionne Vincent’s legacy, it would be inequitable and unjust for it to be at the statutory rate. While not in any way resiling from her primary submission that there was no entitlement to interest, Ms McCartney made a similar submission on behalf of Peter Vincent. Mr Mercer submitted that interest should be awarded at the statutory rates, and that it would only be in the rarest of cases that the Court should exercise its discretion to depart from those rates. The present case, he submitted, was not such a case.
[54] It must be remembered that the rules set out above relating to the executor’s year and the right to interest are equitable rules of general convenience. In applying these rules the Court must still strive for a result that is just and equitable as between the parties. This can be done using the Court’s discretion under s 39 of the Administration Act to order a rate of interest other than the statutory rate.
[55] An example of setting the interest rate on a legacy to reflect what is just and equitable between the parties can be seen in Grace v Grace,22 albeit in the context of a Family Protection Act matter, where Ellis J, in awarding interest at 7% from the end of the executor’s year commented at page 11:
The interest rate of 7% simple is lower than might otherwise have been awarded, and this reflects the fact that it is the plaintiff’s claim that has prolonged the administration. That is not to say that she is to blame for all the delays, indeed I think that this is not the case. But it does reflect the Court’s concern that relatively straightforward claims should be brought to conclusion far more rapidly than has been the case here.
[56] A similar concern about the need to ensure that claims are dealt with expeditiously and without delay occasioned by beneficiaries can be expressed on the
22 Grace v Grace HC WN CP219/93, s May 1997, Ellis J
facts of the present case. As pecuniary beneficiaries have a right to interest, it is necessary to ensure that in awarding interest the Court does not award them an extra benefit when they have caused the delay in administration. This must be a crucial element in determining a just and equitable result between the parties.
[57] Such a concern provides a good reason for, in a suitable case, awarding interest at the rate actually earned on the legacy rather interest at the statutory rate. This accords with the rationale behind a pecuniary beneficiary’s right to interest: that residuary legatees ought not to benefit from delay by retaining the interest on the estate. If the actual rate of interest earned on the legacy is awarded, the residuary beneficiary will not get any benefit to which he is not entitled, or sustain a loss that he should not sustain.
[58] In my view, this is just such a case and the discretion to award interest at a rate other than the statutory rate, in this case the interest actually earned, should be exercised. Avionne Vincent has clearly caused much of the delay in the administration of her mother’s estate and it would be unjust and inequitable for her to benefit from this by being awarded interest on her legacy above that which was actually earned.
Is interest payable on the portion of the legacy assigned to Patterson Hopkins?
[59] As noted earlier, at [14], Avionne Vincent executed a Deed of Assignment on
14 August 2006, pursuant to which she assigned $64,825 of her legacy from Mrs Allen’s estate to Patterson Hopkins, solicitors of Auckland. An issue has arisen as to whether interest is payable from the estate on that sum, following the assignment.
[60] The terms of the assignment were as follows:
By this deed I hereby assign, transfer and set over to Patterson Hopkins, Solicitors of Auckland the sum of $64,825.00 payable to me out of the legacy of $200,000 given to me under Paragraph 8 of the will of Valerie [sic] Joy Allen Deceased.
AND I AUTHORISE AND DIRECT Rowena Margaret Lewis and Peter Raymond Vincent as executors of the estate of Valarie Joy Allen to pay the said sum of $64,825.00 to Patterson Hopkins AND DECLARE that the receipt of a partner of Patterson Hopkins for the said sum of $64,825.00 shall
be a full and sufficient discharge to the said Rowena Margaret Lewis and Peter Raymond Vincent in respect of the said sum of $64,825.00 being part of the said legacy.
[61] I accept the plaintiffs’ submission that the effect of the assignment is that, as from 14 August 2006, the sum of $64,825 no longer forms part of Avionne Vincent’s legacy. It has vested in Patterson Hopkins. Accordingly, that sum is no longer a legacy, so interest is not payable under s 39 of the Administration Act. There are no grounds on which the Court could order the estate to pay interest to Patterson Hopkins.
Result: Interest on Avionne Vincent’s legacy
[62] I have therefore concluded that s 39 of the Administration Act gives Avionne Vincent an entitlement to interest on her legacy. Such interest is to be simple interest, not compounding, at the rate actually earned on the cash portion of the estate, from the expiry of twelve months from Mrs Allen’s death. The calculation of interest is to be made on the actual balance of the legacy from time to time, after deduction of the costs awards, and excluding, as from 14 August 2006, the sum assigned to Patterson Hopkins. The plaintiffs are to provide to Avionne Vincent a certificate as to all deductions for tax.
Application for an order under s 75 Trustee Act
[63] As noted earlier, the parties agreed that the plaintiffs’ application for an order barring further proceedings in the estate maybe dealt with by a consent order. The terms of the consent order are set out below.
Orders
[64] With respect to the plaintiffs’ application for directions under s 66 of the
Trustee Act 1956:
a) Avionne Vincent is entitled to simple interest on her legacy at the rate actually earned on the cash portion of the estate, from the expiry of twelve months from the death of Valarie Joy Allen, calculated on the
actual balance of the legacy from time to time, after deduction of the costs awards, and excluding the sum of $64,825 assigned to Patterson Hopkins.
b) The plaintiffs are to provide Avionne Vincent with a certificate as to all deductions for tax.
[65] No party has succeeded entirely. In the circumstances of this case, I consider it is appropriate that the first and second defendants each bear their own costs in relation to the plaintiffs’ application for directions under s 66 of the Trustee Act
1956. The plaintiffs’ costs are to be met from the residuary estate.
[66] With respect to the plaintiffs’ application for an order under s 75 of the
Trustee Act:
a) There will be an order under s 75 of the Trustee Act 1956 barring the first and second defendants (Avionne Vincent and Peter Vincent) and each of them from bringing any further claim against the executors and trustees of the estate of Valarie Joy Allen.
b) There will be an order under s 75 of the Trustee Act 1956 barring the third defendant (the Public Trustee) from bringing any further or any claim against the executors and trustees of the estate of Valarie Joy Allen provided however that should the plaintiffs issue proceedings against the third defendant then nothing in this order shall prevent the third defendant from defending, counterclaiming or dealing with such litigation and matters arising from or in connection with this litigation in whatever way it deems appropriate.
c) No order as to costs is sought in relation to the application under s 75
of the Trustee Act 1956.
Andrews J
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