Littleton v Kelly - [2016] NZHC 1107

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2016-470-82 [2016] NZHC 1107

BETWEEN
DIANNE VALERIE LITTLETON

Plaintiff

AND

VALERIE ALICE KELLY Defendant

Hearing: On the papers

Counsel:

K Cotter for Plaintiff

Judgment:

1 June 2016

JUDGMENT OF WHATA J

This judgment was delivered by me on 1 June 2016 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Lyon O’Neale Arnold Lawyers, Tauranga

LITTLETON v KELLY [2016] NZHC 1107 [1 June 2016]

Introduction

[1] The applicant, Dianne Valerie Littleton, is the daughter of the respondent, Valerie Alice Kelly. Mrs Kelly is a co-executor trustee with Mrs Kelly of the estate of Brian Kelly. Mrs Kelly has been diagnosed as mentally incapable with poor short term memory and lack of insight into her condition and is considered to have progressive Alzheimer-like dementia.1

Amendment of prayer of relief

[2] In her Statement of Claim, Ms Littleton made an application for the removal of Mrs Kelly pursuant to s 51 of the Trustee Act 1956, which states:

51 Power of Court to appoint new trustees

(1)The Court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the Court, make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.

(2)In particular and without prejudice to the generality of the foregoing provision, the Court may make an order appointing a new trustee in substitution for a trustee who—

…

(c) Is a [mentally disordered person] within the meaning of [the Mental Health (Compulsory Assessment and Treatment) Act 1992], or whose estate or any part thereof is subject to a [property order] made under the [Protection of Personal and Property Rights Act 1988]; or

…

[3] I convened a teleconference with Mr Cotter, counsel for Ms Littleton, on 26
May 2016. Mr Cotter and I were in agreement that the relief sought is more appropriately found in s 21 of the Administration Act 1969 (the Act). During the

1 Medical certificates dated 20 January 2014 and 29 April 2016.

teleconference it was agreed that Mr Cotter would file a memorandum of counsel with a draft order.

[4] The memorandum of counsel was filed on 31 May 2016. Ms Littleton now seeks to amend the Prayer for Relief in her Statement of Claim and asks that the Court enter an order pursuant to s 21 of the Act removing Valeria Kelly as co- trustee/co-executor of the Estate of Brian William Kelly and allowing her to serve as sole executor/trustee of the Estate.

Frame

[5] Section 21 of the Act provides:

21 Discharge or removal of administrator

(1) Where an administrator is absent from New Zealand for 12 months without leaving a lawful attorney, or desires to be discharged from the office of administrator, or becomes incapable of acting as…

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 Littleton v Kelly

Details

AGLC: Littleton v Kelly [2016] NZHC 1107
Case: [2016] NZHC 1107
Decision Date: 1 June 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, Dianne Valerie Littleton sought the removal of Valerie Alice Kelly as a co-executor/co-trustee of the estate of Brian William Kelly. The case, Littleton v Kelly, was heard on the papers, and the judgment was delivered by Whata J on 1 June 2016. Dianne Littleton, the daughter of Valerie Kelly, applied for the removal of Kelly from her position as a co-executor/co-trustee of Brian Kelly's estate. The application was initially made under section 51 of the Trustee Act 1956, but it was later amended to seek relief under section 21 of the Administration Act 1969. The court needed to determine whether Valerie Kelly should be removed from her position as a co-executor/co-trustee due to her incapacity, as evidenced by her diagnosis of progressive Alzheimer-like dementia. The court also needed to consider whether Dianne Littleton should be appointed as the sole executor/trustee of the estate, given the consent of the other beneficiaries, David and Paul. The court found that Valerie Kelly's incapacity, as evidenced by her medical condition, justified her removal under section 21 of the Administration Act 1969. The consent of the other beneficiaries further supported the appointment of Dianne Littleton as the sole executor/trustee of the estate. The court also dispensed with the need to serve notice on Valerie Kelly, as it would serve no useful purpose, and relied on the inherent jurisdiction of the Court to regulate the process and proceedings. The court ordered that Valerie Alice Kelly be removed as co-executor/co-trustee of the Estate of Brian William Kelly and that Dianne Valerie Littleton be named the sole executor/trustee of the Estate of Brian William Kelly.

Orders