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Van Goch v Van Goch

Van Goch v Van Goch

Case [2018] NZHC 2335 6 September 2018

Discharge or removal of administrator

Expediency

Interests of beneficiaries

Conflict of interest

Impartiality

Independence

Administration of estates

Administration Law

Family Law

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-404-001946

[2018] NZHC 2335

BETWEEN
SANDRA PETRONELLA VAN GOCH

Plaintiff

AND

JOHANNES MARINUS VAN GOCH as

executor of the estate of Maria Martina van Goch

First Defendant

HELEN WILHELMINA CATHERINA VAN

GOCH as executor of the estate of Maria Martina van Goch

Second Defendant

SANDRA PETRONELLA VAN GOCH as

executor of the estate of Maria Martina van Goch

Third Defendant

CHARLES GRAHAM MILLER

Fourth Defendant

Hearing: 16 April 2018

Appearances:

Sandra Grant and Stephen Laing for the Plaintiff and Third Defendant

Terrence Stapleton QC for the First and Second Defendant Bradley Cuff and Ryan Thompson for the Fourth Defendant

Judgment:

6 September 2018

JUDGMENT OF MOORE J

This judgment was delivered by me on 6 September 2018 at 11:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

VAN GOCH v VAN GOCH & ORS [2018] NZHC 2335 [6 September 2018]

Introduction

[1] This proceeding concerns the estate of Maria van Goch (“Maria”), who died in September 2016. It is worth at least $8 million. The plaintiff, Sandra van Goch (“Sandra”), the first defendant Johannes van Goch (“John”), and the second defendant Helen van Goch (“Helen”) are the three children of Maria, and the executors of her estate.1

[2] In the substantive proceeding, Sandra has applied for orders under the Family Protection Act 1955, the Law Reform (Testamentary Promises) Act 1949 and the Wills Act 2007. She asserts her mother was in cognitive decline and physically impaired at the time she signed her Will in 2012. She says that as a result her mother’s Will does not reflect her true testamentary intentions.

[3] According to John and Helen, Sandra only brought these proceedings after a protracted period during which she refused to co-operate with her fellow executors and made unreasonable demands of her siblings and the estate solicitor, who is the fourth defendant Charles Miller. He is a partner in the law firm known as Bell & Graham and currently represents the three executors. He opposes Sandra’s claim and denies her assertions regarding Maria’s testamentary capacity. John and Helen also oppose Sandra’s claim.

[4] In late 2016, Mr Miller discussed John and Helen’s concerns with a barrister, Murray McKechnie. This was almost a year before Sandra commenced her proceedings, on 23 August 2017. Mr McKechnie gave advice to Mr Miller between November 2016 and August 2017, and in May 2017 was instructed to act. Mr McKechnie prepared John and Helen’s statement of defence which was filed on 2 October 2017. He now represents the executors in the proceeding brought by Sandra.

1 Sandra is also the third defendant in this proceeding, in her capacity as executor.

This application

[5] This judgment resolves a number of interlocutory applications brought by the siblings. John and Helen apply for the removal of Sandra as an estate executrix on the basis that:

(a)by issuing her proceedings, Sandra has placed herself in a…

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 Van Goch v Van Goch

Details

AGLC: Van Goch v Van Goch [2018] NZHC 2335
Case: [2018] NZHC 2335
Decision Date: 6 September 2018

CaseChat Overview and Summary

Van Goch v Van Goch [2018] NZHC 2335 involved an estate worth at least $8 million. The plaintiff, Sandra van Goch, and her two siblings, Johannes van Goch and Helen van Goch, were the executors of their mother Maria van Goch's estate. Sandra commenced proceedings against the estate seeking to set aside Maria's Will, which she claimed did not reflect her testamentary intentions. The siblings brought a number of interlocutory applications to the Court, including seeking the removal of Sandra as an executor, and the removal of the estate solicitor and counsel. The Court considered the applications and found that while the current arrangements were not working, the appropriate order was to remove all executors and replace them with an independent executor. The Court also dismissed the applications to remove the estate solicitor and counsel, and the application for disclosure of the estate file. The Court directed that the Registrar liaise with the President of the Waikato-Bay of Plenty branch of the New Zealand Law Society to nominate a suitable legal practitioner to accept appointment as administrator of the estate.

Orders