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…
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- AGLC
- Stephenson v Mason [2019] NZHC 1548
- Case
- [2019] NZHC 1548
- Decision Date
CaseChat Overview and Summary
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
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
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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