Young v Young

[2013] NZHC 1396

ORDER PROHIBITING PUBLICATION PRIVATE MEDICAL INFORMATION SET OUT IN [3] AND [4] IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE. PUBLICATION PERMITTED WITHOUT REDACTION IN LAW REPORT OR LAW DIGEST.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV2013-454-130 [2013] NZHC 1396

IN THE MATTER             of the Estate of Gordon Clive Young

IN THE MATTER             of section 76 of the Trustee Act 1956

BETWEEN  BRIAN GARY YOUNG Applicant

AND  KEVIN GORDON YOUNG Respondent

Hearing:                   12 June 2013

Counsel:                  T Manktelow for the Applicant

No appearance for the Respondent

Judgment:                12 June 2013

JUDGMENT OF MALLON J

Introduction

[1]      Brian Young, the applicant, is the sole executor of the estate of his late father, Gordon Clive Young, who died on 9 July 2007 aged 81 years.  He is seeking orders under s 76 of the Trustee Act 1956 because his brother, Kevin Gordon Young, who is a beneficiary under their father’s will, has not been seen or heard of since 1988 despite extensive searches to locate him.  Brian believes that Kevin may be dead but

all that can be said with any certainty is that he cannot be found.

YOUNG v YOUNG [2013] NZHC 1396 [12 June 2013]

Background

[2]      The relevant background is as follows.  Gordon was married to Mary Young. They had two children:  Brian born 26 February 1959 and Kevin born 1 November

1953.  Mary died on 6 September 2002.  Gordon did not remarry nor enter into a de facto  relationship   with  another  party.     Under  Gordon’s   will,   Mary  having predeceased  him,  the estate is  to be divided  equally between  Brian  and  Kevin. However if Kevin predeceased his father, Kevin’s share of the estate is to go to his children.

[3]      Kevin’s only known child is Christopher John Young.  The evidence before me is that Kevin developed a serious [      ] problem in his teenage  years.   He received treatment for [      ] but did not respond to that treatment.   He married Sharon McGrath on 18 May 1973.  They had one child, Christopher, who was born on 21 June 1973.  Kevin separated from Sharon about two years later.  His [      ] was still a problem at this time.   Kevin did not maintain contact with Sharon or Christopher after their separation.  In 1976 Sharon obtained an order that Kevin pay weekly maintenance in respect of Christopher.

[4]      In about 1977 Kevin left for Australia.  Brian believes that this was to avoid paying maintenance.  After he left for Australia the family did not hear from Kevin until the early 1980s.  He then began to write occasional letters to his parents.  This led to visits by Brian in 1982 and 1986 to see him.  On one of these visits Kevin was living in Sydney.   On another he was living in a town in southwest Queensland. Brian says that when he saw Kevin in 1986 he was [     ], was in poor financial circumstances [      ].

[5]      In 1988 Gordon and Mary visited Kevin.  This time Kevin was living in a town in New South Wales.   Brian understands from his parents that they enjoyed their trip and it had been a harmonious one.   However, to their surprise, after this visit neither Brian nor his parents heard anything more from Kevin.   Letters and cards went unanswered.

[6]      Following Mary’s death  Brian  tried to make contact with Kevin  without

success.  After Gordon’s death Brian made further unsuccessful attempts to locate

Kevin.  Private investigators have been retained on three occasions to locate Kevin and  have  undertaken  Australia-wide  searches  for  him.    Further  internet-based searches have been conducted by the estate’s solicitors in subsequent years but there has been no trace of Kevin.

[7]      The administration of Gordon’s estate is complete but for the distribution of Kevin’s half share of the estate which amounts to $85,563.51.   Brian says that he recalls from his conversation with Kevin in 1986 that he regretted that he had not been a father to his son.  Brian says that he can be reasonably confident that Gordon and Kevin would have both wanted Christopher to have the share of the estate.

[8]      On 27 February 2013 Brian filed an application for orders under s 76 of the Trustee Act that he may distribute the estate as if Kevin had died before 9 July 2007 and that any entitlement but for these orders of Kevin is to be distributed to Christopher, his only known child.   On the same date Brian filed an application without notice for directions as to advertising and service.  He applied for orders as to advertising and directing that, subject to advertising being carried out as directed, service on Kevin is to be dispensed with.

[9]      On 28 February 2013 the Associate Judge made the orders as to advertising and, subject to that, dispensing with service on Kevin.   Brian then proceeded to arrange the placement of advertisements in the three publications, the Brisbane Courier Mail, the Grafton Daily Examiner and the Sydney Morning Herald, on 8, 11 and 12 March 2013 respectively and as directed.   The evidence before me is that there has been no response to that advertising.

Orders

[10]     Section 76 of the Trustee Act provides the Court with the power to order that the trustee may distribute trust property as if a person specified in the order is not in existence or never existed or has died before a date or event specified in the order.  In my view, based on the evidence before me, it is appropriate to make the orders sought.  Kevin’s family have not seen of or heard from him for nearly 25 years.  It is now five years since Gordon’s death.  The distribution to Christopher appears to be in  accordance  both  with  the  wishes  of  Gordon  as  testator  and  with  Kevin  as

otherwise the beneficiary under the will.  The efficient administration of the estate favours the order.  No other person appears to have any relevant interest.

[11]     Accordingly I order that the applicant may distribute the estate of Gordon Clive  Young  as  if  Kevin  Gordon  Young  had  died  before  9  July  2007.    Any entitlement but for the orders of Kevin Gordon Young is to be distributed to Christopher John Young.

Mallon J