MacMillan v MacMillan

[2018] NZHC 1060

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2014-485-10444

[2018] NZHC 1060

IN THE ESTATE OF

DUNCAN STUART MACMILLAN late of

Kawerau, Retired Deceased

BETWEEN

DANIEL ALLAN MACMILLAN

Applicant

AND

STUART WAYNE MACMILLAN

Respondent

Hearing:

15 May 2018

(Held at Auckland)

Counsel:

K A Young for Applicant

No appearance for Respondent

Judgment:

16 May 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 16 May 2018 at 1.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Young & Caulfield, Browns Bay

MACMILLAN v MACMILLAN [2018] NZHC 1060 [16 May 2018]

[1]                I have an application before me for orders requiring the executor of the estate of Duncan Stuart MacMillan to file a true and perfect inventory and an account of that estate. The executor did not appear to oppose the application. I am satisfied that he was on notice of the hearing date and that I should proceed to judgment.

[2]                The applicant, Daniel Allan MacMillan, is a beneficiary under the estate. His solicitors have endeavoured to obtain information from the executor, Stuart Wayne MacMillan, relating to the administration of the estate. Those requests have proven fruitless and hence the present application.

[3]                By way of further background, probate was granted on 20 August 2014. The last Will of Duncan MacMillan is relatively straightforward. There are minor gifts for Stuart and Daniel, with the residue of the estate to be shared between them. I am advised by Mr Young, for the applicant, that Stuart refuses to provide any information about the estate and believes that Daniel is not entitled to receive anything under the Will because of disentitling behaviour. He also advises that an issue has arisen as to whether or not Daniel is the testator’s son. Mr Young concedes that he is not, but that that makes no difference for the purposes of the application.

[4]                As Mr Young also submits, an executor must keep a full account and must provide information to beneficiaries on request.1 Stuart is refusing to provide that information and, accordingly, the order as sought is appropriate.

[5]                The costs of the accounting exercise shall be borne by Daniel. However, there should be costs on the application on a 2B basis, to be paid by the estate.

1      Refer Nicky Richardson and Lindsay Breach Nevill’s Law of Trusts, Wills, and Administration (12 ed, LexisNexis NZ, Wellington, 2016) at [20.5.4].