McCartney v Allott

[2025] NZHC 2980

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-415

[2025] NZHC 2980

UNDER

the Trusts Act 2019, Administration Act 1969 and High Court Rules 2016

BETWEEN

TREVOR JOHN MCCARTNEY

Applicant

AND

MURRAY GEORGE ALLOTT AND

TREVOR JOHN MCARTNEY as executors and trustees of the Estate of Peter Athol Mason

Respondents

Hearing:	On the papers
Appearances:	J D Kaye for Applicant
Judgment:	8 October 2025

JUDGMENT OF EATON J

MCCARTNEY v ALLOTT [2025] NZHC 2980 [8 October 2025]

Introduction

[1]                  By application dated 31 July 2025 the executors and trustees of the estate of Peter Athol Mason (the estate) seek an order removing Trevor McCartney as an executor and trustee of the estate. The application is made in reliance on s 21 of the Administration Act 1969, ss 112 and 114(2) of the Trusts Act 2019 and Part 19 of the High  Court  Rules  2016.   The   application   is   supported   by   affidavits   from Mr McCartney and Murray Allott, the second executor and trustee of the estate.

[2]                  A without notice application for leave to file the proceeding as an originating application was filed alongside a without notice interlocutory application seeking directions as to service. On 28 August and then 1 September 2025, directions were made as to service. Affidavits of service have since been filed.

[3]                  Mr Kaye, for the executors and trustees of the estate, filed a memorandum on 6 October, confirming that all parties directed to be served have now been served, and that neither the respondents nor Anthony Mason, a party directed to be served and the last remaining person with a claim against the estate, have taken substantive steps in this proceeding. Accordingly, counsel submits the matter is appropriately dealt with on the papers.

Relevant background

[4]                  Peter  Mason  died  in  April  2023.     In  accordance  with  a  will  dated      8 September 2009, probate was granted in August 2023. The applicant and Mr Allott were jointly appointed the executors and trustees of the estate. The deceased was survived by three adult children: Rachelle Jenny Williamson (Rachelle), Nicholas Peter Mason (Nick) and Anthony James Mason (Anthony). Nick is the sole beneficiary of the estate pursuant to the terms of the deceased’s will.

[5]                  In August 2024, Rachelle made a claim under the Family Protection Act 1955 against the estate and filed proceedings in the Christchurch Family Court. In September 2024, Anthony made a claim under that Act in the same proceedings. On 13 May 2025, Rachelle’s claim was discontinued after her claim was settled by way of a confidential settlement agreement. By Minute dated 10 June 2025, a one-day

hearing was allocated in respect of Anthony’s claim. A hearing date is yet to be allocated.

[6]                  By letter dated 21 February 2025, the estate’s lawyers received a letter from the applicant recording his resignation as a trustee of the estate, effective immediately.

[7]                  To keep the cost to the estate to a minimum and in the hope the claim made against the estate would resolve, this application was delayed. Given Anthony’s claim remains active and a hearing is yet to be allocated, it has been resolved that the removal of Mr McCartney should be formalised.

Approach to application

[8]Section 21 of the Administration At 1969 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 administrator or unfit to so act, or where it becomes expedient to discharge or remove an administrator, the court may discharge or remove that administrator, and may if it thinks fit appoint any person to be administrator in his or her place, on such terms and conditions in all respects as the court thinks fit.

(2)The administrator so removed or discharged shall, from the date of that order, cease to be liable for acts and things done after that date.

(3)Upon any administrator being discharged or removed as aforesaid (whether or not any other administrator is appointed) all the estate and rights of the previous administrator or administrators which were vested in him or her or them as such shall become and be vested in the continuing administrator or administrators (including any administrator appointed under subsection (1)) who shall have the same powers, authorities, discretions, and duties, and may in all respects act, as if he or she or they had been originally appointed as the administrator or administrators.

(4)This section shall, with all necessary modifications, extend to the case where an administrator dies, and the powers and authorities hereby conferred may be exercised and shall take effect accordingly.

(5)Nothing in this section shall restrict section 8.

[9]                  The proper approach to an application of s 21 has been addressed by the Court of Appeal in Tod v Tod1 and Frickleton v Frickleton.2 Both decisions adopt the approach set out by Heath J in Farquhar v Nunns by reference to the following factors:3

(a)The starting point is the Court’s duty to see estates properly administered and trusts properly executed.

(b)This jurisdiction involves a large discretion which is heavily fact dependent.

(c)The wishes of the testator/settlor (evidenced by the appointment of a particular executor or trustee) are to be given consideration but ultimately the question is as to what is expedient in the interests of the beneficiaries.

(d)Expedience is a lower threshold than necessity, and imports considerations of suitability, practicality and efficiency. Misconduct, breach of trust, dishonesty, or unfitness need not be established.

(e)Hostility as between administrators/trustees and beneficiaries is not of itself a reason for removal, but hostility will assume relevance if and when it risks prejudicing the interests of the beneficiaries.

[10]              The testator’s selection of the executor is important,4 but the interests of the beneficiaries must always be the focus.5

Application to the present case

[11]              I agree that it is appropriate to grant leave to the applicant to proceed by way of originating application.  I also agree that it is appropriate to make an order under  s 21 that Mr McCartney be removed as an executor and trustee, and that Mr Allott appointed as the sole executor. I observe that the orders sought were contemplated by both existing executors, and counsel for the estate, and that no steps have been taken in opposition.

1      Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145.

2      Frickleton v Frickleton [2016] NZCA 408, [2017] 2 NZLR 154.

3      Farquhar v Nunns [2013] NZHC 1670 at [13] (footnotes omitted).

4      Tod v Tod, above n 1, at [27](a); Frickleton v Frickleton, above n 2, at [31]; Crick v McIlraith

[2012] NZHC 1290 at [19]–[20].

5      Frickleton v Frickleton, above n 2, at [33].

Result

[12]I make the following orders:

(i)The applicant is granted leave to commence his proceeding by way of originating application.

(ii)The application is granted. Trevor John McCartney is removed as executor and trustee of the estate of Peter Athol Mason.

(iii)Any property of the estate vested in Trevor John McCartney and Murray George Allott jointly as executors and trustees, now vest solely in Murray George Allott as sole executor and trustee of the estate.

...................................................

Eaton J

Solicitors:

Clark Boyce, Christchurch