Parry v Kaywah

[2021] NZHC 2853

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-613716

[2021] NZHC 2853

IN THE MATTER OF

the ESTATE OF JEREMY KEITH KAYWAH

BETWEEN

HANNAH SARAH PARRY

Applicant

AND

MARY KAYWAH

Respondent

Hearing:	On the papers
Judgment:	26 October 2021

JUDGMENT OF NATION J

[1]    On 16 October 2019, probate was granted to Hannah Sarah Parry and Mary Kaywah of the will of Jeremy Keith Kaywah who died at Auckland on about 14 August 2019. Probate was granted after Mary Kaywah and Hannah Sarah Parry swore an affidavit that they would “faithfully execute” the will of which probate is granted in accordance with the law.

[2]    On 30 September 2021, the applicant, Hannah Parry, applied for an order calling upon Mary Kaywah to show cause why she should not be removed as executor of the deceased’s estate. The application was made on the grounds that Mary Kaywah had refused to distribute assets of the deceased’s estate in accordance with the terms of the will.

[3]    The application was to be called in the High Court on 26 October 2021 at 11.45 am. There was an affidavit of service proving that a copy of the application and supporting affidavit have been served on Mary Kaywah on 13 October 2021.

PARRY v KAYWAH [2021] NZHC 2853 [26 October 2021]

[4]    Hannah Parry deposes that, since the deceased’s death, there have been some discussions within the family over the possibility of a distribution of the estate otherwise in accordance with the will, but no agreement as to this had been reached. No legal challenges had been made to the will.

[5]    It is apparent from Hannah Parry’s affidavit that, through her solicitors, she has instructed the solicitors acting in the administration of the estate to distribute the estate in accordance with the deceased’s will. The correspondence and response indicates that Mary Kaywah has indicated to the solicitors acting on the administration that she has objections to the deceased’s will being distributed in accordance with its terms. She has been advised that, if she wished to act in accordance with those views, she needed to retire as executor/trustee. She had not done so.

[6]    On 1 July 2021, Hannah Parry’s solicitors sent letters to the parents of the deceased and the solicitors for the mother of two of the children who are beneficiaries of the will. Copies were sent to the solicitors acting in the administration of the estate. The letters advised that, if Mary Kaywah did not comply with her legal obligations to distribute the deceased’s estate in accordance with his will, Hannah Parry would apply to the High Court to have Mary Kaywah removed as an executor. There was no response to that correspondence.

[7]    On 26 October 2021, prior to the scheduled hearing at the High Court, a memorandum was filed signed by counsel for both Hannah Parry and Mary Kaywah in which, by consent, they asked the Court to make orders as follows:

(a)        removing Mary Kaywah as an executor and trustee of the last will of Jeremy Keith Kaywah; and

(b)        there be no order as to costs.

[8]I make orders accordingly.

Solicitors:

Richard Smedley, Anthony Harper, Christchurch Mary K Crimp, Harmans Lawyers, Christchurch.