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…

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 McCartney v Allott

Details

AGLC: McCartney v Allott [2025] NZHC 2980
Case: [2025] NZHC 2980
Decision Date: 8 October 2025

CaseChat Overview and Summary

The case of McCartney v Allott involved the High Court of New Zealand, specifically the Christchurch Registry. The applicant, Trevor John McCartney, sought an order to remove himself as an executor and trustee of the estate of Peter Athol Mason, who had passed away in April 2023. The respondents were Murray George Allott and Trevor John McCartney, who were the executors and trustees of the estate. The application was made under the Administration Act 1969, the Trusts Act 2019, and the High Court Rules 2016. McCartney had resigned as a trustee in February 2025, and the respondents sought his formal removal to streamline estate administration and avoid costs.

The legal issues before the court centered on whether the applicant should be removed as an executor and trustee of the estate under Section 21 of the Administration Act 1969. The court needed to determine if it was expedient to remove McCartney as an executor and appoint Allott as the sole executor. This involved considering the principles established in precedents such as Tod v Tod and Frickleton v Frickleton, which emphasized the importance of proper estate administration and the interests of the beneficiaries.

The court reasoned that it was appropriate to grant the application for McCartney's removal. The decision was heavily influenced by the need to ensure the estate was administered properly and efficiently, given the active claim against the estate by Anthony Mason. The court noted that McCartney's resignation was already in effect, and expedience dictated that his formal removal was necessary. The wishes of the deceased, as expressed through the appointment of executors, were considered but were ultimately secondary to the interests of the beneficiaries. The court concluded that the removal was in the best interests of the estate and its beneficiaries.

The final orders of the court were that Trevor John McCartney was removed as executor and trustee of the estate of Peter Athol Mason, and Murray George Allott was appointed as the sole executor and trustee. Any property of the estate that had been vested in both McCartney and Allott was now to vest solely in Allott.

Orders