Tod v Tod - [2015] NZHC 528

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2014-470-047 [2015] NZHC 528

IN THE MATTER of the Administration Act 1969

AND

IN THE MATTER

of the estate of the late ALEXANDER MICHAEL TOD

BETWEEN

JULIA ORETIE TOD, ALISTAIR MICHAEL TOD, MARK ALEXANDER TOD AND MATTHEW JOHN TOD Plaintiffs

AND

SHEILA HOLMS TOD sued as executor and trustee of the Will of the late ALEXANDER MICHAEL TOD Defendant

Hearing:

Further written submissions:

31 October 2014

27 January 2015 and
3 February 2015

Counsel:

G L Harrison for the Plaintiffs
ACM Fisher QC and Z Matheson for the Defendant

Judgment:

23 March 2015

JUDGMENT OF BROWN J

Solicitors: Anthony Frankovich, Auckland
Harmos Horton Lusk, Auckland

Counsel: G Harrison, Auckland
ACM Fisher QC, Auckland

TOD v TOD [2015] NZHC 528 [23 March 2015]

Introduction

[1] Proceedings under the Family Protection Act 1955 have been commenced in the Family Court at Waihi by the children (the plaintiffs in the current proceeding) of Alexander Michael Tod (Alec) who died on 1 August 2013. With a view to the initiation of “retrieval” proceedings so as to enhance the value of the estate, the plaintiffs seek an order under s 21 of the Administration Act 1969 to have the Public Trustee appointed as administrator in place of Sheila Tod, Alec’s widow and the defendant in the current proceeding. It is common ground that in order to pursue such retrieval proceedings the Public Trustee would need to successfully challenge an agreement made under s 21 (the s 21 agreement) of the Property (Relationships) Act 1976 (PRA) between Alec and Sheila.

The statutory jurisdiction

[2] Section 21 of the Administration Act makes provision for the removal of an administrator of an estate. It relevantly provides:

21 Discharge or removal of administrator

(1) Where an administrator is absent from New Zealand for 12 months without leaving a lawful attorney, or desires to be discharged from the office of administrator, or becomes incapable of acting as administrator or unfit to so act, or where it becomes expedient to discharge or remove an administrator, the court may discharge or remove that administrator, and may if it thinks fit appoint any person to be administrator in his or her place, on such terms and conditions in all respects as the court thinks fit.

…

[3] The guiding principles in the application of s 21 were helpfully captured by

Panckhurst J in Coote v Warren:1

[11] The term expedient means something less than necessary, rather that removal is a suitable, practical and efficient step to take in order to advance the interests of the estate and its beneficiaries. As to this see the discussion in Crick v McIlraith.

1 Coote v Warren [2013] NZHC 3210.

[12] That said, the authorities in this context stress that the removal of executors, or trustees, is not to be undertaken lightly. Where possible, the wishes of the testator should be honoured. The Courts…

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 Tod v Tod

Details

AGLC: Tod v Tod [2015] NZHC 528
Case: [2015] NZHC 528
Decision Date: 23 March 2015

CaseChat Overview and Summary

The plaintiffs, the children of Alec Tod, sought to have Sheila Tod, Alec's widow, removed as executrix of his estate and replaced with the Public Trustee so as to enable a challenge to a property agreement made between Alec and Sheila under s 21 of the Property (Relationships) Act 1976 (PRA). Sheila opposed the application. The legal issues were whether a personal representative of a deceased spouse has a right to challenge a s 21 agreement and, if not, whether the Court should grant leave to do so under s 88(2) of the PRA. The court held that a personal representative of a deceased spouse does not have a right to challenge a s 21 agreement. The court was of the view that s 87 of the PRA sets out in a definitive manner the circumstances in which a surviving spouse or partner can challenge a s 21 agreement. The court also found that it was not expedient to grant leave to challenge the s 21 agreement in this case as there was little prospect of a successful challenge and that setting aside the agreement would amount to a serious injustice to Sheila. The application was declined but the court appointed a second administrator to provide comfort to the plaintiffs. Costs were awarded to Sheila on a 2B basis.

Orders