Wellwood v Wellwood - [2019] NZHC 801

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-606488

[2019] NZHC 801

UNDER the Trustee Act 1956 and the Administration Act 1969

IN THE MATTER

of the Estate of Roderick Arthur Wellwood

BETWEEN

ROBYN MARIA WELLWOOD, ELINORE LISA MARTEL AND ANNA KATRINA ASHTON

Plaintiffs

AND

MICHAEL WELLWOOD

Defendant

Hearing: 14 March 2019

Appearances:

G W D Manktelow for the Plaintiffs C J Tennet for the Defendant

Judgment:

12 April 2019

JUDGMENT OF COOKE J

[1] The plaintiffs are the daughters of Roderick Arthur Wellwood who died at Waipawa on 7 March 2018. Mr Wellwood’s will dated 1 February 2013 appointed the defendant, his son, as sole executor. This proceeding involves an application by the plaintiffs for an order under s 21 of the Administration Act 1969 removing the defendant as the executor. The defendant is currently serving a prison sentence in Napier. He is also a discharged bankrupt. There are various other factors mentioned in the evidence that has been filed said to justify his removal. The application was opposed.

WELLWOOD v WELLWOOD [2019] NZHC 801 [12 April 2019]

[2] The plaintiffs earlier pursued an interlocutory application that Ms Wendy Dewes, a solicitor based in Lower Hutt, be appointed as temporary administrator. That application was called in the Judge’s Chambers List on 13 August 2018 and was granted on an unopposed basis. The defendant complains that he was not given satisfactory notice of that application in order that he could oppose it.

[3] The substantive application was heard by me on 14 March 2019. At the conclusion of the argument I made the following orders:

(a)Under s 21 of the Administration Act 1969 that Mr Michael Wellwood is removed as executor.

(b)The application is otherwise adjourned for 10 working days to allow the parties to discuss and potentially agree on an independent solicitor to act as the sole executor. The parties are to advise the court by filing memoranda immediately after the 10 days whether agreement has been reached.

(c)If agreement is not reached the Court will invite the President of the Law Society to make a recommendation as to the identity of a sole executor of the estate.

(d)In meantime the appointment of Ms Wendy Dewes the interim administrator is to continue.

[4] I indicated at that time that I would subsequently deliver reasons for my judgment, and that this may occur after the step set out at [3](b) above. These are my reasons. I also make further orders resulting from what has since occurred, which I outline below.

Relevant principles

[5]Section 21 of the Administration Act 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…

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.

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Details

Case: [2019] NZHC 801
Decision Date: 12 April 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, daughters of the deceased Roderick Arthur Wellwood, sought the removal of the defendant, their brother and the appointed executor of their father's estate, under s 21 of the Administration Act 1969. The defendant opposed the application, arguing that he could still perform his duties as executor despite his imprisonment and bankruptcy status. The plaintiffs cited various factors, including the defendant's imprisonment, the testator's wishes, and animosity between the parties, to justify the removal of the defendant as executor.

The court considered the relevant principles outlined in s 21 of the Administration Act, as well as the principles set out in Tod v Tod and Farquhar v Nunns. The court emphasised the importance of ensuring proper administration of the estate and the interests of the beneficiaries. The court found that the defendant's imprisonment was relevant to his ability to perform his duties as executor and gave rise to legitimate concerns about his ability to act responsibly. The court also considered the testator's wishes, as evidenced by a document signed by the deceased, which suggested that he did not want his son to remain as executor. Additionally, the court noted the animosity between the parties and the need for an impartial and professional executor to administer the estate.

The court concluded that it was no longer appropriate for the defendant to remain the sole executor of the estate and ordered his removal. The court gave the parties 10 working days to agree on an independent solicitor to act as the sole executor. If no agreement was reached, the court would invite the President of the Law Society to recommend a suitable candidate. The appointment of the interim administrator, Ms Wendy Dewes, was to continue in the meantime.

Following the hearing, the parties agreed on the appointment of Kevin Robert Smith as the sole executor of the estate. The court made orders appointing Mr Smith as executor, revoking the appointment of Ms Dewes as interim administrator, and directing Mr Smith to file a report outlining the steps taken for the administration of the estate. The court also reserved leave for the parties to apply for any consequential orders and directed that the reasonable legal costs of each party be met out of the assets of the estate.

Orders