Phillips v Cogger - [2024] NZHC 3184

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2024-442-000042

[2024] NZHC 3184

IN THE MATTER of Sections 4B and 21 of the Administration Act 1969

AND

IN THE MATTER

of an application by Daniel James Phillips for orders removing and replacing the executor of the estate of Dayal Patrick Phillips

BETWEEN

DANIEL JAMES PHILLIPS

Applicant

AND

DAVID SIME COGGER

Respondent

Hearing: On the papers

Counsel:

Mr Phillips in person Mr Cogger in person

Judgment:

31 October 2024

JUDGMENT OF RADICH J

[1] Daniel Phillips (Mr Phillips) is a beneficiary of the estate of his late father, Dayal Patrick Phillips (the deceased), along with Mr Phillips’ sister Rebecca Engel. Mr Phillips has applied, through an originating application, for the removal of the respondent, David Cogger, as the executor and trustee of the estate of the deceased

PHILLIPS v COGGER [2024] NZHC 3184 [31 October 2024]

and for his appointment as replacement executor and trustee under s 21 of the Administration Act 1969.1

[2] Initially, Mr Cogger indicated an intention to oppose the application and filed a notice of opposition. Since then, he has withdrawn his notice of opposition and said he will abide the ultimate decision of the Court. He has asked, however, that the Court have regard to points made in a memorandum filed by him on 9 October 2024.

[3] When the proceeding was called in the Judge’s Chambers List on 21 October, it was agreed that I would determine the application on the papers.

Background

[4] The deceased passed away on 23 October 2019. He left a valid will dated 21 September 2010. In the will, Mr Cogger and Phillip Cox were appointed as executors. Gifts of items of property were made to beneficiaries, including Mr Phillips and Ms Engel. Shares and life insurance policy proceeds were given to the deceased’s wife at the time the will was made, Suzan McCall, as was the remainder of the estate. The will provided that if Ms McCall did not survive the deceased, then the remainder of the estate was to become the property of Mr Phillips and Rebecca Engel.

[5] The deceased’s marriage to Ms McCall was dissolved in 2014. Accordingly, under s 19 of the Wills Act 2007, dispositions to her are void.

[6] In 2018, the deceased created, and saved on his laptop, an unsigned electronic document. It was in the form of a will but was not validly executed. Previously, Mr Cogger and Mr Cox had applied to the Court to have the purported will validated under s 14 of the Wills Act. It would have bequeathed to Rohan Dobson, the deceased’s partner at the time of his death, all shares owned by him, his share in a residential property and, potentially, a life insurance payment to the value of approximately $500,000. The residue of the estate would then have gone to

1 I granted leave to bring the proceeding by way of originating application on 2 September…

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 Phillips v Cogger

Details

AGLC: Phillips v Cogger [2024] NZHC 3184
Case: [2024] NZHC 3184
Decision Date: 31 October 2024

CaseChat Overview and Summary

Daniel James Phillips, a beneficiary of his late father's estate, sought the removal of David Cogger as the executor and trustee of the estate of Dayal Patrick Phillips. Cogger, appointed executor alongside Phillip Cox, faced allegations from Phillips and his sister Rebecca Engel of improper administration, including failures to secure estate assets and communicate effectively with beneficiaries. Cogger withdrew his opposition to the application but requested the court consider his memorandum. The High Court of New Zealand, Nelson Registry, was tasked with determining whether to remove Cogger as executor and appoint Phillips in his place.

The legal issues centred on whether the removal of Cogger as executor was expedient under Section 21 of the Administration Act 1969. The court had to balance the deceased's wishes, as expressed in his 2010 will, against the current needs of the beneficiaries. The Court of Appeal's guidance on the removal jurisdiction, focusing on the expedience for beneficiaries and the deceased's wishes, was crucial. The court considered whether Cogger's administration had become unsuitable, impractical, or inefficient, and whether replacing him would better serve the estate and beneficiaries.

The court found that despite the deceased's clear wish for Cogger to be his executor, the current administration had led to significant resentment and lack of confidence among the beneficiaries. The unusual events and the breakdown in trust between Cogger and the beneficiaries made it expedient to remove Cogger. The court concluded that appointing Phillips as executor was the most suitable, practical, and efficient way to advance the interests of the estate and its beneficiaries. Phillips' legal background and the relatively small balance of the estate's funds supported his appointment.

The court granted the application, removing Cogger as executor and appointing Phillips in his place. Cogger was ordered to transfer all estate funds and assets to Phillips and provide him with all relevant records. Phillips was allowed to take charge of the laptop held by the court. The estate was to bear the costs and disbursements of the application.

Orders