Sillick v Sillick

[2016] NZHC 2880

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2010-488-000824 [2016] NZHC 2880

IN THE MATTER OF

the estate of LUCY RIHI SILLICK

(deceased)

UNDER

the Administration Act 1969

BETWEEN

FRANZINA DE ANNA SILLICK Applicant

AND

BRIAN EARL SILLICK Respondent

DAWN KELLY SILLICK Interested Party

Hearing:	30 November 2016
Appearances:	F Fuiava for Applicant Interested Party in Person
Judgment:	30 November 2016

ORAL JUDGMENT OF GILBERT J

Solicitors:

Denham Bramwell, Manukau, Auckland

SILLICK v SILLICK [2016] NZHC 2880 [30 November 2016]

Introduction

[1]      This is an application pursuant to s 21 of the Administration Act 1969 by one administrator, Franzina Sillick, for the removal of the other, her uncle, Brian Sillick.

Background

[2]      Lucy Sillick died on 8 December 2010.  She had four children, Brian, Dawn, Charlotte and Anne (who died in infancy).  Franzina is one of Charlotte’s children.

[3]      Lucy appointed Brian and Franzina as executors and trustees under her will and probate was granted to them on 29 December 2010.  The sole asset in the estate was a property in Kaitaia which has a capital value of $285,000.  In her will, Lucy left the property to Brian and Franzina as tenants in common in equal shares and recorded her wish that it be kept in the Sillick family and not sold.  Brian has lived at the property since his mother died.

[4]      Dawn made a claim under the Family Protection Act because her mother made no provision for her in her will.  This claim was settled and a consent order was made in the Auckland Family Court on 7 May 2014.  The order varied the will so as to provide that the property would be owned by Brian, Franzina and Dawn as tenants  in  common  in  shares  37.5  per  cent,  37.5  per  cent  and  25  per  cent respectively.  An additional clause was added, clause 3(e), dealing with Brian’s right of occupation of the property.   The operative clause of the will following these amendments reads as follows:

3.        MY EXECUTOR AND TRUSTEE shall hold the whole of my estate

UPON TRUST either to retain or sell it and:

(a)       to pay my debts taxes duties and executorship expenses, and

(b)       to pay and transfer the residue equally to the said Brian Earl Sillick as to 37.5% and Francina Deanna Sillick as to 37.5% and to Dawn Kelly Sillick as to 25% absolutely as tenants in common.

(c)       in  the  event  that  my  son  or  my  grand-daughter  do  not survive me [not applicable].

(d)       I EXPRESS the wish that my house property and land is not to be sold and is to be kept in the Sillick family.

(e)       if, after my death, my son Brian Earl Sillick shall choose to occupy  the  property  which  I  own  at  193  Okahu  Road,

Ahipara, Kaitaia (identifier NA37B/107) then he shall be responsible for meeting outgoings on the property during the period of his occupancy.

[5]      Title to the property has been transferred to Franzina and Brian as tenants in common in equal shares but the further transfer needed to implement the settlement of the Family Protection Act claim has not yet occurred.

Removal application

[6]      Franzina applies to remove Brian as an administrator because he is not maintaining the property and is not paying rates and other outgoings.  Photographs annexed to her affidavit demonstrate the unkempt state of the property: the yard is overgrown with grass and weeds and is littered with rubbish; the fence is failing; and the guttering is full of weeds.  She believes that water and power services have been disconnected and she is concerned that the condition of the property will continue to deteriorate.

[7]      Franzina deposes that the following creditors have not been paid:

(a) (b)	Rates Water	$11,331.96 $ 5,022.22
(c)	Expenses met by Franzina for insurance, legal fees for obtaining probate and for transfer of title and funeral expenses	$ 4,156.88
(d)	Legal expenses incurred in relation to Family Protection Act claim	$ 1,127.50

[8]      Franzina believes that Brian does not have the means to maintain the property or pay the outgoings on it.  In these circumstances, and given the deterioration in the condition of the property, Franzina wants to remove Brian as an administrator so that she can sell the property as sole administrator and distribute the proceeds to the beneficiaries.

[9]      Brian opposes the application.  He says that administration of the estate was completed when the assets were distributed and the Family Protection Act claim resolved.    He says that there is therefore no basis for the application.  Further, he claims that he is entitled to occupy the property and that his mother’s wish that the property remain in the Sillick family and not sold should be respected.

[10]     Dawn also strongly opposes the application and does not want the property sold.    She  accepts  that  the  outgoings  must  be  paid  and  Franzina  should  be reimbursed.  She hopes to come to an arrangement with Brian and Franzina for this to occur.

[11]     The removal application is misconceived because the estate has already been administered.  The administrators have no continuing role.  Franzina has no right to sell the property.  She agreed to a settlement of the Family Protection Act claim on terms which included giving Brian the right to occupy the property.  Although he agreed to meet the outgoings on the property and she is entitled to enforce that obligation,  his  failure  to  pay  does  not  give  her  an  immediate  right  to  sell  the property. The application must accordingly be dismissed.

Result

[12]     The application is dismissed.

M A Gilbert J