Milne v Sutherland - [2025] NZHC 1279

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-000876

[2025] NZHC 1279

UNDER Section 21 of the Administration Act 1969 and section 112 of the Trusts Act 2019

IN THE MATTER

of the estate of Laurie Owen Evans and the estate of Doreen Rose Evans

BETWEEN

DAVID OWEN MILNE, LISA EMMA MILNE, CRAIG OWEN MILNE and STACEY ROSE MILNE

Plaintiffs

AND

SUSAN JOY SUTHERLAND and OWEN PAUL EVANS

Defendants

Hearing: 18 March 2025

Appearances:

M J Matthew for Plaintiffs

N W Taefi KC and A West for Defendants

Judgment:

22 May 2025

JUDGMENT OF GARDINER J

This judgment was delivered by me on 22 May 2025 at 3.00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Rennie Cox (Auckland) for Plaintiffs Glaister Keegan (Auckland) for Defendants

MILNE v SUTHERLAND [2025] NZHC 1279 [22 May 2025]

Introduction

[1] This application for summary judgment concerns a dispute between the executors of the estate of Laurie Owen Evans (Laurie), and certain beneficiaries of Laurie’s estate. Laurie died in 1999, but the bequests at issue in this proceeding did not fall due for distribution until after the death of his wife, Doreen Rose Evans (Doreen) in 2022.

[2] The defendants, Susan Joy Sutherland (Sue) and Owen Paul Evans (Owen), are the surviving children of Laurie and Doreen. They are the executors and trustees of both their parents’ estates. They are also the principal beneficiaries of both estates.

[3]The plaintiffs are minor beneficiaries of Laurie’s estate. They are:

(a)David Milne (David) who is the son-in-law of Laurie and Doreen. David is entitled to 2/13th of the residue of Laurie’s estate.

(b)Lisa Milne (Lisa), Craig Milne (Craig) and Stacey Milne (Stacey) are David’s children and grandchildren of Laurie and Doreen. They are collectively entitled to 1/13th of the residue of Laurie’s estate, or 1/39th each.

[4] At the core of the disagreement between the parties is the interpretation of Laurie’s will, and the scope of the life interest he granted Doreen. The defendants say the life interest is an unfettered life interest. They say that the correct interpretation of Laurie’s will is that both the capital and income of Laurie’s estate was held on trust for Doreen’s “free use” during her lifetime. To this end, the trustees were beholden to enable Doreen to enjoy the full benefit of this bequest.

[5] The plaintiffs say that the life interest Laurie granted Doreen entitled her to “free use’ of his money while she was alive, but that any property she bought using that money remained beneficially owned by Laurie’s estate and reverted to his estate on her death.

[6] The plaintiffs apply for orders removing the defendants as executors and trustees of Laurie and Doreen’s estates and replacing them with independent administrators and trustees. The plaintiffs say that the defendants have breached their duties as trustees by wrongly treating the 3 Success Court, Omaha property (Omaha Property), which Doreen purchased using funds from Laurie’s estate,…

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 Milne v Sutherland

Details

AGLC: Milne v Sutherland [2025] NZHC 1279
Case: [2025] NZHC 1279
Decision Date: 22 May 2025

CaseChat Overview and Summary

This case involves a dispute between the executors and trustees of the estates of Laurie and Doreen Evans and certain beneficiaries of Laurie's estate. The plaintiffs, David Milne, Lisa Milne, Craig Milne, and Stacey Milne, seek orders removing the defendants, Susan Joy Sutherland and Owen Paul Evans, as executors and trustees of the estates and replacing them with independent administrators and trustees. The plaintiffs argue that the defendants have breached their duties by treating the Omaha Property as part of Doreen's estate and transferring it to themselves as beneficiaries. The defendants maintain that their interpretation of Laurie's will is correct and that removing them as executors and trustees would be inappropriate and cause unnecessary costs and diminish the assets of the estate.

The key issues for determination are whether the defendants have a reasonably arguable defence to the plaintiffs' claim that the Omaha Property does not form part of Doreen's estate and whether the defendants have a reasonably arguable defence to the plaintiffs' application to remove them as executors and trustees of the estates of Laurie and Doreen. The Court found that the defendants have an arguable defence to the claim concerning the Omaha Property based on their interpretation of the life interest provision in Laurie's will. The Court also found that the defendants have a reasonably arguable defence to the plaintiffs' application to remove them as executors and trustees of the estates of Laurie and Doreen. The Court dismissed the plaintiffs' application for summary judgment and ordered the defendants to provide disclosure of all bank statements for Laurie's estate to the plaintiffs within 30 days and to make an originating application within 30 working days for a declaration as to the interpretation of Laurie's will and associated orders as to how the costs of the application are to be met. The proceedings are stayed pending resolution of the originating application.

Orders