Stephenson v Mason - [2019] NZHC 1548

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2464

[2019] NZHC 1548

UNDER the Administration Act 1969

IN THE MATTER

of an application for removal of

administrator in the Estate of MARGARET MARY CONSTANCE MASON

BETWEEN

BRONWEN MARY STEPHENSON

Applicant

AND

JAMES WYNNE MASON

Respondent

On the papers Formal proof

Appearances:

D-M Cross for Applicant

No appearance by or on behalf of Defendant

Judgment:

3 July 2019

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 3 July 2019 at 4.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

STEPHENSON v MASON [2019] NZHC 1548 [3 July 2019]

Introduction

[1] Margaret Mason died on 30 August 2017, leaving a last will dated 25 February 2010. Probate in common form was granted on 22 November 2017.

[2] Margaret appointed her daughter Bronwen Stephenson, her grandson Andrew Stephenson, and her son James Mason as administrators. The will provided that, after payment of funeral debts, testamentary expenses and all duties, the trustees were to divide the residue between Bronwen and James equally as the beneficiaries.

[3] Bronwen says the relationship between James and the other administrators has broken down to such an extent that little progress has been made in the administration of the estate and she seeks an order under s 21 of the Administration Act 1969 for removal of James as an administrator of their mother’s estate on the grounds that it has become expedient to do so.

The evidence

[4] The evidence adduced by the applicant establishes that the estate’s major asset is an apartment valued at between $1.3 and $2.2 million, depending on the extent of remedial work undertaken prior to sale: Unit GB and AU2,8 of 7 The Promenade, Takapuna (The Rocks apartment). There are also funds currently held in the trust account of the estate’s solicitors, O’Brien Ward, on behalf of the estate, but the estate has liabilities for body corporate special levies.

[5] It is also established on the evidence that other assets of the estate may exist but have been unable to be ascertained because of James’s uncooperative attitude and behaviour. It is alleged that James has placed himself into a position of conflict in terms of his obligations as a trustee by:

(a)occupying The Rocks apartment, failing to pay rent and failing to keep it in a reasonable state of repair;

(b)refusing to provide information about the existence and whereabouts of the assets of the estate to an extent that it has not been possible to ascertain the full extent of the assets and liabilities; and that he

(c)may have taken, misused and diminished assets of the estate, including share portfolios, bank account deposits, credit facilities and insurance monies, as well as misusing the apartment itself and its contents.

[6] Bronwen complains that her brother’s behaviour has been such as to make it impossible for Andrew and her to have any dealings with him. She does not feel comfortable or…

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 Stephenson v Mason

Details

AGLC: Stephenson v Mason [2019] NZHC 1548
Case: [2019] NZHC 1548
Decision Date: 3 July 2019

CaseChat Overview and Summary

The case of Stephenson v Mason involved Bronwen Mary Stephenson, the applicant, seeking the removal of James Wynne Mason, the respondent, as an administrator of their mother's estate. The dispute centred on the administration of Margaret Mary Constance Mason's estate, which had broken down due to conflict between the administrators. Bronwen sought an order for James's removal under section 21 of the Administration Act 1969, citing that it had become expedient to do so.

The primary legal issue was whether the Court should exercise its discretion to remove James as an administrator of the estate. Bronwen argued that James had materially failed to discharge his duties over a significant period of time, was no longer capable of properly administering the estate, and that the proper execution of the terms of the will was at risk. The court considered the principles of expediency, suitability, practicality, and efficiency in the interests of the beneficiaries, as well as the established breakdown in the relationship between the trustees.

The Court found that the complete breakdown in the relationship between the trustees and James's abandonment of his responsibilities justified the removal. The Court was satisfied on the evidence that James had acted in breach of his duties as a trustee. Consequently, the Court made an order removing James as an administrator of the estate and directed that the costs of the proceeding be paid out of the estate.

Orders