Stevens v Stevens

[2020] NZHC 1136

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2019-441-34

[2020] NZHC 1136

BETWEEN

VICKIE MARY STEVENS

Applicant

AND

WAYNE GEORGE STEVENS

Respondent

Teleconference:	25 May 2020
Counsel:	E V R Stannard for applicant, together with applicant in person No appearance for respondent
Judgment:	27 May 2020

JUDGMENT OF DOBSON J

[1]                   This proceeding is an application brought by Vickie Stevens (Vickie) to have her brother, Wayne Stevens (Wayne), removed as executor of the estate of their mother, Mrs Patricia Hantler. The ground of the application is Wayne’s failure to meet his obligations in that role. Vickie and Wayne have three other siblings – one sister and two brothers.

[2]                   Mrs Hantler died in 2017 and probate was granted to Wayne on 20 September 2017. Wayne pursued a prompt winding up of his mother’s estate, asking each of his siblings to sign a consent to that occurring. Vickie declined to sign the consent. Thereafter, differences have arisen between Vickie and Wayne as to the appropriateness of expenditure Vickie incurred, at her mother’s expense, whilst attending to her mother’s needs when she was in a care facility suffering from dementia.

STEVENS v STEVENS [2020] NZHC 1136 [27 May 2020]

[3]                   Bramwell Bate, solicitors in Hastings, produced a statement of assets and liabilities for the estate as at 12 October 2017, showing a balance available for distribution, after deduction of that firm’s costs, of $40,207.79. Mrs Hantler had no interests in real property and the assets comprised bank accounts and Bonus Bonds. No value was attributed to jewellery, personal effects or clothes.

[4]                   I was advised that Vickie’s understanding is that the two bank accounts maintained in Mrs Hantler’s name were closed by Wayne, and that he had the full proceeds of those accounts transferred to an account in his own name. It is Vickie’s understanding that Wayne has paid himself and their sister, Darrelle Stevens, their shares of that available residue. Vickie and her two other brothers, Trevor and Warren, who both reside in Australia, have not been paid.

[5]                   Shortly after Bramwell Bate produced the statement for the estate, they advised the beneficiaries that they had no further instructions and that Wayne intended to carry out the administration of the estate on his own.

[6]                   In March, June and August 2018, Vickie’s lawyers wrote to Wayne seeking a statement as to the  administration of the  estate.  They received  no reply until,  on 20 August 2018, Wayne emailed Vickie’s lawyers stating that he had asked her for receipts for items Vickie had purchased at their mother’s expense, and that such receipts had not been supplied. Wayne did not provide any explanation for the absence of a statement of the assets and liabilities of the estate. It appears Wayne was resisting providing any information until he received explanations for the purchases that had been charged to their mother’s EFTPOS card.

[7]                   Vickie’s lawyers responded on 27 August 2018, advising that their instructions were that Vickie had previously provided copies of the receipts. They did attach to their letter further copies of numerous receipts.1 An explanation was also provided of the nature of the purchases and why Vickie had made them for their mother. That response did not produce an accounting for the estate’s assets from Wayne.

1      From copies attached to Vickie’s affidavit in support of the application for removal, much of the detail does appear to be illegible.

[8]                   In October 2018, Vickie applied to the Court for an order requiring Wayne, as executor, to file an inventory and an account for their mother’s estate. Orders to that effect were made in February 2019 and the orders were served on Wayne in March 2019.

[9]                   Wayne took no steps to comply with that order and the present application for his removal as executor was made in June 2019.

[10]               No formal steps have been taken in opposition to the current application. In late October 2019, the Court received an informal handwritten affidavit sworn by Wayne, describing his concerns that some of the purchases made by Vickie were not in fact for their mother. He complained that the photocopies of receipts were illegible and that he needed the original receipts to confirm that the purchases were indeed for their mother. He stated that until he was satisfied on this matter, he could not carry out his duties as executor of their mother’s will.

[11]               On all the evidence available, any concerns Wayne has about inappropriate expenditure incurred by Vickie at their mother’s expense during the latter’s lifetime cannot have a material effect on the net assets available for distribution. Nor can outstanding issues on that potential concern justify non-compliance by Wayne with his obligations to account to his siblings for the current state of the assets and liabilities of their mother’s estate.

[12]               From Vickie’s perspective, she has provided all the details she possibly can about the nature of the purchases and why they were for her mother. I was advised that Warren Stevens and Vickie’s son both saw their mother/grandmother wearing the items of clothing and shoes in question.

[13]               Counsel for Vickie has responsibly brought to the Court’s attention the existence of an affidavit completed by Darrelle Stevens which supports Wayne’s position. The document appears to have been prepared on 22 September 2019, and then affirmed as an affidavit in informal terms before a Justice of the Peace in Auckland on 22 November 2019. Darrelle deposes that Vickie was difficult about a prompt administration of the estate and she criticises Vickie for disposing of personal

effects without the consent of the other siblings. She also deposes that the items charged to their mother’s EFTPOS card that remain of concern to Wayne were personal items for Vickie.

[14]               Nothing further has been done by or on behalf of Wayne to defend the application for his removal. The terms of Darrelle’s support for his position are understandable, but do not provide grounds for resisting his removal when he has not fulfilled his obligations.

[15]               Both Wayne Stevens and Darrelle Stevens were emailed by the Registry on 21 and 22 May 2020, advising them of the telephone conference scheduled for 25 May 2020. Neither Wayne nor Darrelle responded to those emails and neither participated in the telephone conference.

[16]               It is regrettable that the protagonists in this dispute have not been helped to reach some mutually acceptable middle ground. The amount at issue does not warrant formal court proceedings but emotional concerns about the appropriateness of administration of a parent’s estate are understandable.

[17]               I am satisfied that Vickie is entitled to an order removing Wayne as the executor of their mother’s estate. I direct that solicitors for Vickie are to ensure that all siblings are sent a copy of this judgment, and that Vickie complies with her obligations to report to all her siblings on resolution of outstanding issues.

[18]               Vickie has also sought an order for costs against Wayne in relation to this proceeding. She is entitled to an order, the quantum of which is to be settled by the Registrar in accordance with scale. If Wayne wishes to dispute the extent of the order as to costs, he is to pay into court the amount as quantified by the Registrar as a condition of pursuing any challenge in respect of its quantum.

Dobson J

Solicitors:

Willis Legal, Napier for applicant