CHRISTOPHER BOYS GAMBRILL AND LUCY CHARLOTTE MACGINLEY AS TWO OF THE THREE EXECUTORS OF THE ESTATE OF CHARLES BARRY THURSBY WHITFIELD V WILLIAM GUY WHITFIELD HC AK CIV 2012-404-006664

CHRISTOPHER BOYS GAMBRILL AND LUCY CHARLOTTE MACGINLEY AS TWO OF THE THREE EXECUTORS OF THE ESTATE OF CHARLES BARRY THURSBY WHITFIELD V WILLIAM GUY WHITFIELD HC AK CIV 2012-404-006664

The defendant's persistent, unequivocal refusal to participate rendered the co-executors and trustees incapable of administering the estate and the trust; accordingly the Court, exercising its inherent jurisdiction and s21(1) of the Administration Act, removed him as executor and trustee; no replacement was required given Wynyard Wood's capacity to administer alone.

Citation
openlaw-9f53ee72_4128_485c_968a_01f2a823442a.pdf
Parties
First Plaintiff Executor/trustee: Christopher Boys Gambrill; First Plaintiff Executor/trustee: Lucy Charlotte MacGinley; Second Plaintiff Trustee Company: Wynyard Wood (Whitfield) Trustee Services Limited; Defendant Executor/trustee: William Guy Whitfield
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 April 2013
Procedural Posture
Civil Trusts and Estate Administration / Judgment on Originating Application (formal Proof Under HCR 15.9)
Outcome
Defendant removed as executor of the estate and as trustee of the William Trust; no replacement trustee appointed; no order as to costs.
Legal Topics
Removal of Trustee, Removal of Executor, Inherent Jurisdiction, Administration of Estate, Service and Formal Proof
Trusts Estates Civil Procedure Removal of Trustee Removal of Executor Inherent Jurisdiction Administration of Estate Service and Formal Proof

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Parties

Christopher Boys Gambrill

First Plaintiff Executor/trustee

Lucy Charlotte MacGinley

First Plaintiff Executor/trustee

Wynyard Wood (Whitfield) Trustee Services Limited

Second Plaintiff Trustee Company

William Guy Whitfield

Defendant Executor/trustee

Procedural Posture

Civil Trusts and Estate Administration / Judgment on Originating Application (formal Proof Under HCR 15.9)

Legal Issues

  1. 1 Whether a co-executor/trustee who persistently refuses to participate may be removed
  2. 2 Whether the Court may remove a trustee without appointing a replacement and which statutory or inherent powers apply
  3. 3 Whether possible incapacity absolves non‑participation and affects removal decision

Ratio Decidendi

The defendant's persistent, unequivocal refusal to participate rendered the co-executors and trustees incapable of administering the estate and the trust; accordingly the Court, exercising its inherent jurisdiction and s21(1) of the Administration Act, removed him as executor and trustee; no replacement was required given Wynyard Wood's capacity to administer alone.

Court Disposition

Defendant removed as executor of the estate and as trustee of the William Trust; no replacement trustee appointed; no order as to costs.

Orders

  • William Guy Whitfield is removed as an executor of the estate of Charles Barry Thursby Whitfield
  • William Guy Whitfield is removed as a trustee of the Barry Whitfield (William) Trust