St Clair v Wright - [2017] NZHC 494

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-616540 [2017] NZHC 494

UNDER
the Trustee Act 1956 and the

Administration Act 1969

IN THE MATTER OF

the estate of John Vernon Wright

BETWEEN

CHELSEY ELLEN ST CLAIR Plaintiff

AND

IAIN WRIGHT Defendant

Hearing: 23 August 2016

Counsel:

I R Millard QC for Plaintiff
No appearance for Defendant
P R W Chisnall for Official Assignee

Judgment:

17 March 2017

JUDGMENT OF CLARK J

Background

[1] The plaintiff is one of two residuary beneficiaries in the estate of John Vernon Wright (the testator) who died on 25 November 2014. The sole executor of the will is the defendant, Iain Wright, the testator’s only son.

[2] Probate was obtained on 24 March 2015. The estate has not been distributed but held in its entirety by the defendant as far as is known to the plaintiff.

[3] In these proceedings the plaintiff seeks orders removing the defendant as the executor and trustee of the trusts created by the will. Other orders are sought. I
come to these in due course.

ST CLAIR v WRIGHT [2017] NZHC 494 [17 March 2017]

Only the plaintiff appeared

[4] The defendant was represented during the early stages of the litigation. But since April 2015 attempts to contact him have been numerous and unsuccessful. The plaintiff’s solicitors and the defendant’s own solicitors have attempted to obtain from the defendant proper financial disclosure in respect of the estate including details of income and expenditure.

[5] On 25 February 2015 Mr Wright swore in an affidavit in support of his application for probate that when called upon he would provide an accurate account of the deceased’s estate, including receipts and disbursements and that he would faithfully execute the will dated 20 September 2014. He remains in default.

[6] In his written submissions Mr Manktelow, then counsel for the plaintiff, submitted these failures were compounded by subsequent events which were noted in a Court minute dated 2 June 2016:

Mr Grimwood [the defendant’s solicitor] has filed a memorandum for Mr Wright in which he advises that he has been having difficulty contacting his client. Mr Wright has apparently been working on a rig, and contact is difficult. Mr Grimwood says that he received an email on 30 May 2016 stating that: ‘the required information’ had been sent to Mr Grimwood by Mr Wright on 23 May 2016. For whatever reason, it appears that Mr Grimwood has not yet received that information.

…

I record that I have advised Mr Grimwood this morning that it is unsatisfactory that he is apparently having difficulty obtaining instruction from Mr Wright. Mr Wright will be aware that accepting the office of executor and trustee in an estate carries with it responsibilities, and it is simply not acceptable for him to put himself out of communication with his solicitors and counsel on a matter as important as the issue of whether he should be removed as executor and trustee.

[7] A further minute of this Court…

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 St Clair v Wright

Details

AGLC: St Clair v Wright [2017] NZHC 494
Case: [2017] NZHC 494
Decision Date: 17 March 2017

CaseChat Overview and Summary

In the case of St Clair v Wright, the plaintiff, Chelsey St Clair, sought the removal of the defendant, Iain Wright, as the executor and trustee of the estate of John Vernon Wright, who had died on 25 November 2014. Probate was obtained on 24 March 2015, but the estate had not been distributed. St Clair alleged that Wright had failed to provide proper financial disclosure, had intermingled estate funds with his own, had failed to pay body corporate levies, and had not accounted for chattels. Wright did not appear at the hearing or provide any further information. The court found that Wright had indeed failed in his duties as executor and trustee and ordered his removal. Michael Basil-Jones was appointed as the new executor and trustee, and Wright was ordered to pay the plaintiff's costs on a 2B basis and disbursements reasonably incurred for the purpose of the proceeding. Wright was not entitled to be indemnified from the estate for his legal costs in defending the proceeding.

Orders