PETHERICK V PETHERICK HC WN CIV-2011-485-1024

PETHERICK V PETHERICK HC WN CIV-2011-485-1024

On the unchallenged affidavit evidence the judge was satisfied that the defendant is incapable or unfit to act within s 21 of the Administration Act 1969 and therefore ordered his removal as executor and trustee of both estates; because the remaining trustees were competent no replacement was appointed; costs were awarded to the plaintiffs payable one half from each estate.

Citation
openlaw-05f5c95f_6bf5_4347_b6d0_5b26a6bfae55.pdf
Parties
Plaintiff/trustee: Graham David Petherick; Plaintiff/trustee: Efstathios Cotsilinis; Defendant/executor and Trustee: Stephen Grant Petherick
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 October 2011
Procedural Posture
Application for Removal of Executor and Trustee Under Administration Act 1969 / Default Judgment (judgment by Default Granted)
Outcome
Application granted: defendant removed as executor and trustee of both A V Petherick and E R Petherick estates; remaining trustees to continue in office; costs awarded to plaintiffs.
Legal Topics
Removal of Executor Under Administration Act 1969, Capacity and Fitness to Act as Administrator, Costs Allocation in Estate Proceedings
Trusts Administration of Estates Civil Procedure Removal of Executor Under Administration Act 1969 Capacity and Fitness to Act as Administrator Costs Allocation in Estate Proceedings

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Parties

Graham David Petherick

Plaintiff/trustee

Efstathios Cotsilinis

Plaintiff/trustee

Stephen Grant Petherick

Defendant/executor and Trustee

Procedural Posture

Application for Removal of Executor and Trustee Under Administration Act 1969 / Default Judgment (judgment by Default Granted)

Legal Issues

  1. 1 Whether the defendant should be removed as executor and trustee of the A V Petherick and E R Petherick estates under s 21 of the Administration Act 1969
  2. 2 Whether replacement trustees must be appointed
  3. 3 Whether costs should be awarded and how to allocate them between estates

Ratio Decidendi

On the unchallenged affidavit evidence the judge was satisfied that the defendant is incapable or unfit to act within s 21 of the Administration Act 1969 and therefore ordered his removal as executor and trustee of both estates; because the remaining trustees were competent no replacement was appointed; costs were awarded to the plaintiffs payable one half from each estate.

Court Disposition

Application granted: defendant removed as executor and trustee of both A V Petherick and E R Petherick estates; remaining trustees to continue in office; costs awarded to plaintiffs.

Orders

  • Defendant Stephen Grant Petherick is removed as executor and trustee of the A V Petherick estate.
  • Defendant Stephen Grant Petherick is removed as executor and trustee of the E R Petherick estate.