IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2021-454-41
[2022] NZHC 386
UNDER Section 21 of the Administration Act 1969 and section 112 of the Trusts Act 2019 IN THE MATTER
of an application to remove and replace the executor and trustee of the Estate of Robert Earl Smith of Palmerston North (deceased)
BETWEEN
ANTON CRAIG SMITH AND MELANIE MARIE SMITH
Plaintiffs
AND
CHRISTINE VELEKOF
Defendant
Hearing: 18 February 2022 Appearances:
M Freeman and N Donaldson for the Plaintiffs D M Abricossow for the Defendant
Judgment:
8 March 2022
JUDGMENT OF COOKE J
Introduction
[1] The plaintiffs in this proceeding are two of the four children of Mr Robert Smith who died in January 2020. The defendant, Ms Velekof, was Mr Smith’s de facto partner, and the person appointed as the administrator of his estate under his will.
[2] In this proceeding the plaintiffs seek orders removing the defendant as administrator and appointing an independent person in her place under s 21 of the Administration Act 1969. The ultimate purpose of having an independent administrator appointed in place of Ms Velekof is so that the administrator can then
SMITH v CHRISTINE VELEKOF [2022] NZHC 386 [8 March 2022]
commence proceedings against Ms Velekof to recover some of the property she obtained or kept following the administration of Mr Smith’s estate, with other proceedings then commenced as contemplated by the plaintiffs, including under the Family Protection Act 1955. It is said that some of that property should have been brought back within the estate under the Property (Relationships) Act 1976, and that the plaintiffs and their siblings should benefit from that property by proceedings subsequently brought.
[3] Ms Velekof opposes the orders. Affidavits have been filed by each of the plaintiffs, and an affidavit from the defendant has been provided in opposition.
The plaintiffs’ contentions
[4] Mr Smith and Ms Velekof had a de facto relationship lasting some 32 years. The plaintiffs and their two brothers were Mr Smith’s children of a former relationship.
[5] Mr Smith died on 3 January 2020. Under his will Ms Velekof was his sole executor, and under the will she inherited his estate. Probate was obtained on 11 February 2020. The reported assets of the estate were $97,262.58. This was distributed within a month of probate being granted.
[6] The plaintiffs say that the majority of Mr Smith and Ms Velekof’s assets acquired during their relationship were held in Ms Velekof’s name or their joint names, and that they accordingly did not fall into Mr Smith’s estate. They say there were substantial term deposits, and also identify three properties which they say have a combined value of $1.5 million, together with two other properties which they believe Mr Smith and Ms Velekof had an interest in.
[7] The plaintiffs say that this property was more properly treated as relationship property, and that they have been disinherited. They say they cannot bring a claim under…
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- Smith v Velekof [2022] NZHC 386
- Case
- [2022] NZHC 386
- Decision Date
CaseChat Overview and Summary
The Court found that the plaintiffs' claims could not succeed because they were time-barred under section 90 of the Property (Relationships) Act 1976. The Court rejected the argument that section 90 did not apply to the proceedings in question, and held that any proceedings brought by an administrator were subject to the time limits set out in section 90. The Court also noted that any application for an extension of time under section 90(2) would need to be made before the final distribution of the estate, which had already occurred in this case.
The Court held that there was no point in removing and replacing Ms Velekof as the administrator, as there were no steps a replacement administrator could take. The Court did not need to address the alternative argument that jurisdiction under section 21 to remove and replace an administrator no longer exists once the administration is complete.
In conclusion, the application to remove and replace the defendant as the administrator was dismissed. The defendant would be entitled to costs, and the parties were directed to attempt to agree on the costs or to file memoranda outlining their positions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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