Parbhu v Parbhu - [2022] NZHC 3116

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-0060

[2022] NZHC 3116

UNDER The Administration Act 1969 and the Trusts Act 2019

IN THE MATTER

of the Estate of Mohan Parbhu

BETWEEN

MAHESH PARBHU, KOKILA RUPA AND HEMLETA PARBHU

Applicants

AND

LILAWATI MOHAN PARBHU

Respondent

Hearing: 16 May 2022

Appearances:

G A Ireland for Applicants

J R Billington KC and H P Short for Respondent

Judgment:

25 November 2022

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 25 November 2022 at 4.15 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors: McVeagh Fleming, Auckland
Neilsons Lawyers Ltd, Auckland

Counsel: J R Billington KC, Auckland
H P Short, Auckland

PARBHU v PARBHU [2022] NZHC 3116 [25 November 2022]

[1] I issued a results judgment in this matter on 9 June 2022, appointing Mr William Malcolm Patterson of Auckland, Solicitor, as executor and trustee of the estate of the deceased, Mr Mohan Parbhu (“estate” and “deceased”), in place of the respondent.1 These are my reasons.

Background

[2] By originating application of 3 February 2022, the applicants seek orders removing the respondent as executrix and trustee of the estate and substituting Mr Patterson as executor in her place, together with ancillary relief. The respondent opposes the application.

[3] The applicants are the children of the deceased’s first marriage. The respondent is the deceased’s second wife. The respondent and the deceased had one child, Sonika Parbhu.

[4] The deceased died on 13 February 2021, leaving a will dated 28 January 2014. Probate was granted on 10 June 2021. The deceased appointed the respondent as executrix and trustee, gave his interest in a specified partnership to Sonika Parbhu, and left the residue of his estate to the respondent. The evidence before me is to the effect that the deceased gifted his interest in the partnership some years before the date of death.

[5] The deceased made no provision for the applicants in his will, and they propose to bring a claim against the estate under the Family Protection Act 1955 (“FPA”).

[6] Evidence provided to date by or on behalf of the estate is to the effect that such a claim would be pointless, as the estate’s only asset is a modest cash sum. The applicants reserve their position on whether this is so. In particular, they note that the respondent has not deposed that there was no relationship property as at the date of the deceased’s death. Discovery has not taken place. Nor has an affidavit of assets and liabilities in the estate been provided.

1 Parbhu v Parbhu [2022] NZHC 1360.

[7] The applicants intend that the new executor would investigate what if anything the estate comprised at the date of death. If the answer to that is “nothing of consequence”, they wish the executor to take such steps, particularly under the Property (Relationships) Act 1976 (“PRA”), as may be open 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 Parbhu v Parbhu

Details

AGLC: Parbhu v Parbhu [2022] NZHC 3116
Case: [2022] NZHC 3116
Decision Date: 25 November 2022

CaseChat Overview and Summary

The applicants, the children of the deceased's first marriage, sought the removal of the respondent, the deceased's second wife, as executrix and trustee of the estate, arguing that her personal interests were in conflict with theirs. The applicants intended for the new executor to investigate and potentially enlarge the estate's value. The legal issues before the court were whether the respondent should be removed as executrix and if an executor could bring a claim to enhance the estate's value under the Property (Relationships) Act 1976 (PRA). The court held that it was expedient to remove the respondent as executrix due to the conflicting interests between her and the applicants. The court also considered the possibility of an executor bringing a claim under the PRA to enhance the estate's value but did not rule out the possibility of such a claim succeeding. The court appointed Mr William Malcolm Patterson as the new executor and trustee of the estate.

The final orders were that the respondent be removed as executrix and trustee of the estate of Mohan Parbhu, and Mr William Malcolm Patterson be appointed in her place. Costs on this application were to lie where they fell.

Orders