van Rijn v van Ryn - [2022] NZHC 2498

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1279

[2022] NZHC 2498

IN THE ESTATE Of ANNA MARIA VAN RIJN, also known as ANNA MARIA LAFLEUR

BETWEEN

FRANCIS EVERARDUS MARIE VAN RIJN, RENE TITUS MARIE VAN RYN, and SIMON JOHN OLDBURY JONES

Plaintiffs

AND

MARIETTE MARIA BERNADETTE VAN RYN

First Defendant

ROSITA ANTOINETTE ALIDA MARIA MURRAY

Second Defendant

SASKIA ROBINA MARIA VAN RYN
Third Defendant

ANTONIA LIDWINA MARIA BYNEVELT

Fourth Defendant

Hearing: 24 August 2022

Appearances:

S A Grant for the Plaintiffs

J G Miles QC for the Defendants
R C Woods for the current executors

Judgment:

30 September 2022

JUDGMENT OF POWELL J

This judgment was delivered by me on 30 September 2022 at 10 am pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:

VAN RIJN V VAN RYN [2022] NZHC 2498 [30 September 2022]

[1] The defendants have applied for the removal of the current executors of the estate of Anna Maria van Rijn (“Mrs van Rijn”), Jeremy Goodwin and Jeffrey Meltzer (“the current executors”), and for them to be replaced by Catherine Atchison, Barrister and Solicitor of Auckland.

[2] The application is not opposed. The current executors abide the decision of the Court, although they have noted their familiarity with the issues and question the utility of a change in executor at a relatively late stage. The plaintiffs’ position is not known: Mrs Grant appeared when the application was called and remains counsel on the record but had no instructions and it was indeed unclear at the date of the hearing whether her instructing solicitors had made the plaintiffs aware of the application which had been served on them. Obviously, since the hearing there has been additional time for Mrs Grant and/or her instructing solicitor to inform the plaintiffs of the application and/or to seek instructions but no steps have been taken by the plaintiffs in the interim.

Background

[3] After a dispute arose as to who were the appropriate executors of the estate of Mrs van Rijn, the current executors were appointed by consent, following a mediation in November 2020.

[4] Since their appointment the principal assets of the estate have been realised and an interim distribution of $600,000 was made to each of the beneficiaries, Mrs van Rijn’s seven children, in May 2021. The estate has not been finalised however. Various issues have been raised by the defendants (being the four daughters of Mrs van Rijn) in respect of possible debts owed to the estate by Francis van Rijn and Rene van Ryn (“the plaintiff brothers”) (two of Mrs van Rijn’s three sons, and two of the original executors under the 2019 will).

[5] It is how the current executors have dealt with those issues and the time that has been taken to date that forms the basis for the present application.

The application to remove the current executors

[6] The defendants initially applied for the replacement of the current executors…

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 Rijn v van Ryn

Details

AGLC: van Rijn v van Ryn [2022] NZHC 2498
Case: [2022] NZHC 2498
Decision Date: 30 September 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the matter of van Rijn v van Ryn was heard and determined by Powell J on 30 September 2022. The case involved a dispute over the estate of Anna Maria van Rijn between her children. The defendants, four daughters, sought the removal of the current executors of the estate, Jeremy Goodwin and Jeffrey Meltzer, and their replacement with Catherine Atchison. The application was unopposed and the current executors and plaintiffs did not contest the application.

The court was required to determine whether the current executors should be replaced under s 21 of the Administration Act 1969. The legal principles guiding the court's decision involved the duty to properly administer estates and execute trusts, the consideration of the testator's wishes, and the expediency of the beneficiaries' interests. The court found that the current executors had failed to provide adequate information and updates to the beneficiaries, resulting in frustration and delays in finalising the estate. The court was satisfied that replacing the current executors with Ms Atchison was not only expedient but the only option given the circumstances. The court appointed Ms Atchison as the new independent executor and directed her to consider the reasonableness of any outstanding accounts provided by the current executors. The issue of costs was to be determined on the papers.

The court declined to grant leave to apply for orders to recover outstanding legal fees from the plaintiff brothers out of their share of the estate, as it was not clear what type of application could be filed and the position of the plaintiffs' counsel was unclear. However, the court observed that this did not prevent the plaintiffs' counsel from filing an appropriate application if jurisdiction existed to do so.

Orders