HOWIE v HOWIE [2015] NZHC 2362

HOWIE v HOWIE [2015] NZHC 2362

The defendant's occupation of the sole significant estate property without consent and to the detriment of estate administration constituted a breach of executor duties and an obstruction to sale; the High Court, exercising both its inherent jurisdiction and s 21 of the Administration Act, was justified in removing the defendant as executor and ordering costs against him.

Citation
[2015] NZHC 2362
Parties
Plaintiff / Executor / Beneficiary: Ross Anthony Howie; Defendant / Executor / Beneficiary: Michael Timothy Howie
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 September 2015
Procedural Posture
Application to Remove Executor / Hearing and Oral Judgment
Outcome
Defendant removed as executor; costs awarded to plaintiff in capacity as executor.
Legal Topics
Removal of Executor, Administration of Estate, Executor Duties, Costs Assessment
Trusts and Estates Civil Procedure Equity and Fiduciary Duties Removal of Executor Administration of Estate Executor Duties Costs Assessment

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Parties

Ross Anthony Howie

Plaintiff / Executor / Beneficiary

Michael Timothy Howie

Defendant / Executor / Beneficiary

Procedural Posture

Application to Remove Executor / Hearing and Oral Judgment

Legal Issues

  1. 1 Whether a co-executor occupying estate property without consent can be removed
  2. 2 Whether the occupation by the co-executor obstructs administration and sale of estate assets
  3. 3 Whether the court has jurisdiction to remove an executor

Ratio Decidendi

The defendant's occupation of the sole significant estate property without consent and to the detriment of estate administration constituted a breach of executor duties and an obstruction to sale; the High Court, exercising both its inherent jurisdiction and s 21 of the Administration Act, was justified in removing the defendant as executor and ordering costs against him.

Court Disposition

Defendant removed as executor; costs awarded to plaintiff in capacity as executor.

Orders

  • Mr M T Howie is removed as an executor of the estate of Doreen Howie effective immediately.
  • Mr M T Howie is ordered to pay costs of $4,958.00 to the plaintiff in his capacity as executor of the estate of Doreen Howie.