The Estate of Ian Rex PARKER HC AK CIV-2012-404-1647

The Estate of Ian Rex PARKER HC AK CIV-2012-404-1647

Because the co-executors were unable to agree, the other beneficiaries consented to their removal, and the proposed replacement executor consented (subject to charging professional fees), the High Court lawfully exercised its discretion under s51 of the Trustee Act 1956 to grant permission to proceed by originating application and to make the orders in the filed draft, including directing that the applicants' reasonable costs of the application be paid from the estate.

Citation
openlaw-ac6ed259_740d_4503_b068_b15f4e5028d2.pdf
Parties
Estate / Subject: The Estate of Ian Rex Parker; Applicant / Executor and Administrator: Alan Rex Parker; Applicant / Executor and Administrator: Murray Charles Parker
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 March 2012
Procedural Posture
Removal of Executors and Administration of Estate / Interlocutory Application for Permission to Proceed by Originating Application Granted
Outcome
Application granted; permission to proceed by originating application; orders made in form of draft order filed as document 8; costs to be paid from estate funds
Legal Topics
Removal of Executors, Appointment of Replacement Executor, Trustee Act S51, Trustee Fees, Beneficiary Consent
Trusts and Trustees Probate and Administration Civil Procedure Removal of Executors Appointment of Replacement Executor Trustee Act S51 Trustee Fees Beneficiary Consent

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Parties

The Estate of Ian Rex Parker

Estate / Subject

Alan Rex Parker

Applicant / Executor and Administrator

Murray Charles Parker

Applicant / Executor and Administrator

Procedural Posture

Removal of Executors and Administration of Estate / Interlocutory Application for Permission to Proceed by Originating Application Granted

Legal Issues

  1. 1 Whether co-executors who cannot agree should be permitted to proceed to remove themselves and appoint a replacement executor
  2. 2 Whether the proposed replacement consents and is entitled to charge professional fees
  3. 3 Whether costs of the interlocutory application should be paid from estate funds

Ratio Decidendi

Because the co-executors were unable to agree, the other beneficiaries consented to their removal, and the proposed replacement executor consented (subject to charging professional fees), the High Court lawfully exercised its discretion under s51 of the Trustee Act 1956 to grant permission to proceed by originating application and to make the orders in the filed draft, including directing that the applicants' reasonable costs of the application be paid from the estate.

Court Disposition

Application granted; permission to proceed by originating application; orders made in form of draft order filed as document 8; costs to be paid from estate funds

Orders

  • Permission granted to applicants to proceed by way of originating application
  • Orders made in the form of the draft order filed as document 8 on the Court file