Reid v Simmonds

[2017] NZHC 122

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CIV-2017-435-1 [2017] NZHC 122

IN THE MATTER	of the Administration Act 1969
BETWEEN	LINDA MAY REID Applicant
AND	MARJORIE ELEANOR SIMMONDS Respondent

Hearing:	On the papers
Counsel:	J H Waugh for Applicant
Judgment:	10 February 2017

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is

4 pm on the 10th day of February 2017

REID v SIMMONDS [2017] NZHC 122 [10 February 2017]

[1]      Mrs   Simmonds   holds   an   undivided   half   share   of   a   property   at

18 Colville Street in Masterton as executrix and administrator of the estate of her late husband, Robert Baden Simmonds and a half share personally.  Mrs Simmonds has recently lost the capacity to manage her own affairs.  Her daughter, Linda Reid, now does so for her, pursuant to an enduring power of attorney.

[2]      Ms Reid has executed a sale and purchase agreement for the Colville Street property on her mother’s behalf.   She has deposed that she was unaware that the power of attorney did not permit her to do this, insofar as that half of the property held by her mother as administrator was concerned.   The difficulty was only discovered when the sale became unconditional and the transfer imminent.

[3]      The purchasers have since moved into the property but the title has not been able to be transferred.

[4]      Ms Reid therefore now seeks to remove her mother as administrator and to appoint the Public Trust at Masterton in her place, pursuant to s 21 of the Administration Act 1969, which relevantly provides:

(1)       Where   an   administrator   …   becomes   incapable   of   acting   as administrator  or  unfit  to  so  act,  …  the  court  may  discharge  or remove that administrator, and may if it thinks fit appoint any person to be administrator in his or her place, on such terms and conditions in all respects as the court thinks fit.

(2)       The administrator so removed or discharged shall, from the date of that order, cease to be liable for acts and things done after that date.

(3)       Upon any administrator being discharged or removed as aforesaid (whether or not any other administrator is appointed) all the estate and  rights  of  the  previous  administrator  or  administrators  which were vested in him or her or them as such shall become and be vested in the continuing administrator or administrators (including any administrator appointed under subsection (1)) who shall have the same powers, authorities, discretions, and duties, and may in all respects act, as if he or she or they had been originally appointed as the administrator or administrators.

…

[5]      Ms Reid’s brothers, Allan Simmonds and Rodney Simmonds (who are the other beneficiaries under their father’s will) consent to the application, as does the Public Trust.

[6]      A medical  report  from  a  psychogeriatrician,  Dr Anthony  Duncan,  dated

14 June 2016 confirms that Mrs Simmonds has Alzheimer’s disease and is incapable of managing her own affairs.

[7]      I am therefore satisfied that:

(a)       Mrs Simmonds is incapable of acting as administrator; and

(b)      it  is  expedient  to  remove  her as  administrator  and  to  appoint  the

Public Trust in her place.

[8]      This will allow the transfer of the property to be completed.

[9]      I therefore make the following orders under s 21 of the Administration Act:

(a)       Marjorie Eleanor Simmonds is removed as the administrator of the estate of Robert Baden Simmonds; and

(b)      the  Public  Trust  at  Masterton  is  appointed  as  administrator  of

Mr Simmonds’ estate in her place.

Rebecca Ellis J

Solicitors:           Moore Law, Whanganui, for Applicant