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 DefendantANTONIA 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 executorsJudgment:
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…
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- van Rijn v van Ryn [2022] NZHC 2498
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- [2022] NZHC 2498
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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