Stewart v Wheeler - [2023] NZHC 192

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2022-435-12

[2023] NZHC 192

UNDER the Administration Act 1969 and the Trusts Act 2019

IN THE MATTER

of the Estate of Sandra Elizabeth Catherine Stewart

BETWEEN

THOMAS ROSS STEWART

Plaintiff

AND

BRONWYN VANESSA WHEELER in her

capacity as executrix and trustee of the

Estate of Sandra Elizabeth Catherine Stewart Defendant

Hearing: 1 February 2023

Appearances:

C D Batt for Plaintiff Defendant in person

Judgment:

15 February 2023

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction and background

[1]Sandra Stewart died on 9 November 2020.

[2] The plaintiff, Thomas Stewart, is Mrs Stewart’s widower. The defendant, Bronwyn Wheeler, was Mrs Stewart’s younger sister.

[3] A matter of a week or so before her death, Mrs Stewart made a will. She appointed her solicitors, Webb Farry, Dunedin, and the defendant as her executors and

STEWART v WHEELER [2023] NZHC 192 [15 February 2023]

trustees (or personal representatives). Unusually, the terms of the appointment refer to “the Partners at the date of my death in the firm of Webb Farry”.

[4] Probate of Mrs Stewart’s will was not applied for until mid-July 2021. In the interim, the partners in Webb Farry had disclaimed appointment, and the application was made by the defendant alone. This Court granted probate to the defendant in an order dated 22 September 2021.

[5] In her will Mrs Stewart left her personal and household effects to the plaintiff. She made a specific gift of a Holden motorcar to the defendant. There is an issue relating to this gift to which it will be necessary to return. She directed her personal representatives to arrange for the installation of a memorial park bench at St Kilda, Dunedin in memory of her parents, her daughter Amanda (all three of whom had predeceased her) and herself. The balance of her estate Mrs Stewart left to her personal representatives upon trust to pay her debts and funeral and estate administration costs, and then to divide the residue between the plaintiff as to 50 per cent, the defendant as to 30 per cent, her son, Alan Robinson, as to 10 per cent and Capital & Coast District Health Board as to 10 per cent.

[6] Although there are no estate accounts before the Court — which in itself is germane to one of the issue in the case — it is common ground that the principal asset of the estate is Mrs Stewart’s half interest in a residential property in Lawrence, Otago which the plaintiff and she owned as tenants in common in equal shares.

[7] Since the grant of probate the defendant has been responsible for administering the estate. Some steps have certainly been taken in that regard, but, close to 18 months on, the process is far from complete. In particular, the Lawrence property is not yet on the market.

[8] The plaintiff commenced this proceeding on 29 August 2022. His principal contention is that the defendant has…

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 Stewart v Wheeler

Details

AGLC: Stewart v Wheeler [2023] NZHC 192
Case: [2023] NZHC 192
Decision Date: 15 February 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Stewart v Wheeler involved a dispute over the administration of Sandra Stewart's estate. Thomas Stewart, the widower and primary beneficiary, sought the removal of Bronwyn Wheeler, Sandra's sister and co-executor, due to alleged mismanagement and delays in estate administration. The primary legal issue was whether Bronwyn Wheeler should be removed as the executor and trustee of Sandra Stewart's estate under section 112 of the Trusts Act 2019.

Associate Judge Johnston concluded that the plaintiff had demonstrated that there was no arguable basis for the court to decline removing Bronwyn Wheeler as executor and trustee. The judge identified several factors influencing this decision, including the significant delay in estate administration since the grant of probate, Bronwyn's apparent misunderstanding of her fiduciary obligations, her failure to act impartially, her refusal to recognize Thomas's entitlement to participate in the sale of the estate's main asset, and the high level of hostility between the parties. The judge also considered the straightforward nature of the estate, emphasizing that despite its simplicity, the administration had been unsatisfactory. While the testator's wishes were important, the judge found that Bronwyn's actions had already thwarted those wishes.

The court accepted Thomas's proposal for Mr. Tom Mahony, an experienced estate lawyer, to replace Bronwyn as executor and trustee. Although Bronwyn opposed Mr. Mahony's appointment solely on the basis that he was proposed by Thomas, the judge found no valid reason to decline his appointment, as Mr. Mahony had affirmed his willingness to act independently and impartially. The judge granted summary judgment in favor of Thomas, ordering Bronwyn's removal and Mr. Mahony's appointment as the new executor and trustee. The judge reserved the decision on costs, suggesting that they be paid out of the estate and that the parties attempt to resolve the issue by agreement first.

Orders