O'Brien v Best - [2019] NZHC 2275

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2014-485-603896

[2019] NZHC 2275

UNDER Section 21 of the Administration Act 1969

IN THE MATTER

of the Estate of Florence Maureen Mends

BETWEEN

PAULA JAN O’BRIEN

Applicant

AND

PATRICIA DAWN BEST

Respondent

Hearing: 9 September 2019

Counsel:

J D Haig and J Sparrow for the Applicant

Judgment:

11 September 2019

JUDGMENT OF COOKE J

[1]By application dated 2 September 2019 the applicant applied for orders:

(a)removing the respondent, Patricia Dawn Best, as executor of the estate of Florence Maureen Mends; and

(b)seeking a mortgage interest (mortgage instrument 10802615.2) in favour of the respondent and the applicant as executors registered on the record title for the property located at 32 Main Road, Woodend (record of title identified 159460) is vested solely in the applicant and the respondent’s mortgage interest as an executor in the Property is disposed.

O’BRIEN v BEST [2019] NZHC 2275 [11 September 2019]

[2] The application was supported by an affidavit from the applicant sworn 3 September 2019. That affidavit exhibits formal consents to the application provided by the two beneficiaries of the estate, George Mends and Cheryl Mends. There is also an affidavit of service of the application on the respondent and a memorandum of counsel dated 2 September 2019.

[3] The application was first called before me in the Judge’s Chambers List on Monday 9 September 2019. I was advised there was an impending sale of the property subject to the mortgage interest. I requested counsel to consider a particular issue concerning the wording of order (b) above, and following an amendment I made the orders in the form set out in [12] below and indicated that reasons would follow. These are the reasons.

Background

[4] Mrs Florence Mends died in Nelson in September 2014 leaving a will, in respect of which probate was granted on 18 November 2014. The two executors were the applicant and the respondent. The residue of the estate was divided in equal half shares to the deceased daughter Ms Cheryl Mends, and her son Mr George Mends through a trust.

[5] The executors lent funds from the estate to Ms Cheryl Mends, and that loan was secured by a mortgage over her property at 32 Main North Road. Ms Mends subsequently sold the property, with settlement to take place on 11 September 2019. As part of settlement it was necessary that the mortgage be discharged, which requires the executors’ consent.

[6] Unfortunately the respondent has lost her mental capacity. The affidavit from the applicant appends a certificate from Dr Sue Genner confirming that the scope of her practice includes the assessment of a person’s mental capacity, and that on 10 January 2019 that she examined the respondent. She reports that she has progressive Alzheimer’s dementia which is moderately severe and that she has no insight into her own limitations. She indicates that in her opinion that the respondent is not wholly capable to…

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 O'Brien v Best

Details

AGLC: O'Brien v Best [2019] NZHC 2275
Case: [2019] NZHC 2275
Decision Date: 11 September 2019

CaseChat Overview and Summary

The case of O'Brien v Best involves an application by Paula Jan O'Brien to remove Patricia Dawn Best as an executor of the estate of Florence Maureen Mends. The applicant also sought to vest a mortgage interest in property at 32 Main Road, Woodend solely in herself. The legal basis for the application was Section 21 of the Administration Act 1969 and Section 52 of the Trustee Act 1956. The case was heard by Cooke J, who ultimately made orders removing Patricia as an executor and vesting the mortgage interest in Paula Jan O'Brien.

The legal issues before the court were whether the removal of Patricia as an executor was justified and whether the mortgage interest should be vested solely in Paula Jan O'Brien. The court found that Patricia had lost her mental capacity, as confirmed by a doctor's report. This was sufficient evidence to remove her as an executor. The court also found that vesting the mortgage interest in Paula Jan O'Brien was appropriate, given the circumstances of the case.

Cooke J considered the relevant statutory provisions and case law in making the orders. The court noted that the orders were appropriate to ensure that the estate was properly administered and that the beneficiaries had consented to the orders. The court also considered the issue of the wording of the order relating to the mortgage interest, but ultimately found that the amended orders were appropriate.

The final orders made by the court were that Patricia Dawn Best be removed as an executor of the estate of Florence Maureen Mends and that Patricia Dawn Best’s mortgage interest in the Property at 32 Main Road, Woodend as an executor is vested solely in Paula Jan O’Brien as executor.

Orders