Rosinger v Sachs - [2021] NZHC 3022

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001802

[2021] NZHC 3022

UNDER Sections 6 and 19 of the Administration Act 1969 and Part 19 of the High Court Rules 2016

IN THE MATTER OF

the Estate of JOSELYN SHEBA SACHS

BETWEEN

EDAN-JASON ROSINGER

Applicant

AND

BASIL ALTER SACHS

Respondent

On the papers: 27 October 2021

Appearances:

W Andrews for the Applicant

Judgment:

9 November 2021

Reissued:

15 November 2021

JUDGMENT OF WALKER J

This judgment was delivered by me on 9 November 2021 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

ROSINGER v SACHS [2021] NZHC 3022 [9 November 2021]

Introduction

[1] This originating application for orders granting letters of administration and probate of the will of Joselyn Sheba Sachs (the Will) comes before me on the papers.

[2] The applicant, Edan-Jason Sebastian Rosinger (Jason), is the son (and only child) of Ms Sachs.

[3] The respondent is the sole remaining executor of the Will. He has been served with this application but has taken no steps.1

[4] Joselyn Sachs died on 27 August 2020 in Israel after illness. Her will dated 12 November 2019 provided for the appointment of her brother Basil Sachs, together with her solicitor, Christopher Lord, and accountant Sam Chan, as executors and trustees of her estate.

[5] Mr Lord and Mr Chan have renounced their roles by deeds of renunciation dated 18 February 2021 and 3 March 2021 respectively.

[6] The only beneficiaries of the Will are Jason and Mr Sachs. Jason is the primary beneficiary. It is not clear to me what the value of the estate is. Jason is not currently privy to this information because his uncle has not disclosed it despite request. There is some suggestion that significant sums may be held in bank accounts in Ms Sachs’s name.

[7] There is another relevant consideration. Ms Sachs also settled a family trust called the JS Sachs Family Trust (the Trust). Jason is the final beneficiary of the Trust. Mr Sachs is a discretionary beneficiary. At the time of Ms Sachs’s death, the trustees were Mr Lord, Mr Chan and Mr Sachs. Both Mr Lord and Mr Chan have resigned as trustees.

1 An affidavit of service has been filed. It has not been affirmed or sworn at this stage due to COVID-19 Alert Level 3. It has been filed in accordance with the COVID-19 protocol with an accompanying memorandum from counsel.

[8] Clause 13 of the trust deed provides there must be at least two trustees, one of whom must be an independent trustee. At present, there is only one remaining trustee—Mr Sachs—meaning that he has no power to manage the Trust.

[9] Clause 14 of the trust deed provides that the power of appointment of new trustees after Ms Sachs’s death, if not provided for in the Will, vests with the administrators of her estate. A power of appointment is not provided for in the…

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 Rosinger v Sachs

Details

AGLC: Rosinger v Sachs [2021] NZHC 3022
Case: [2021] NZHC 3022
Decision Date: 9 November 2021

CaseChat Overview and Summary

The case of Rosinger v Sachs involves an originating application for orders granting letters of administration and probate of the will of Joselyn Sheba Sachs. The applicant, Edan-Jason Sebastian Rosinger, is the son and only child of the deceased, while the respondent, Basil Alter Sachs, is the deceased's brother and the sole remaining executor of her will. The applicant seeks to bypass the respondent as executor and be granted letters of administration and probate, along with Leigh Denise Judd, a solicitor and partner of Pidgeon Judd. The application is made under the Court's inherent jurisdiction, sections 6 and 19 of the Administration Act 1969, and rule 19.5 of the High Court Rules 2016. The legal issues in this case involve the court's discretion to bypass persons entitled to a grant of administration under section 6 of the Administration Act 1969 and whether it is expedient to do so due to special circumstances. Additionally, the court considers whether to grant leave to commence the proceeding by way of an originating application under rule 19.5(1) of the High Court Rules 2016. The reasoning of the court, as delivered by Justice Walker, focuses on the respondent's inability to effectively discharge his responsibilities as executor due to his emotional state, health issues, and distrust of authority. The court also highlights the necessity of resolving the impasse to avoid further delay and potential harm to the estate and its beneficiaries. The judge concludes that the applicant's competency, along with the experienced oversight provided by Leigh Denise Judd, make it suitable, practical, and efficient to bypass the respondent as executor. Consequently, the court grants the orders sought in the application, including the reasonable costs of the application to be paid out of the estate of the late Ms. Sachs.

Orders