MOLETA v MOLETA & ORS [2020] NZHC 2680

MOLETA v MOLETA & ORS [2020] NZHC 2680

Removal was ordered because the trustee (Dellisse) was materially conflicted by suing the estate she administered, there was insufficient confidence she would act with the required even‑handedness and full disclosure given her litigation conduct and history of changing representation; an independent, experienced trustee (Christopher Darlow) was necessary to protect the estate and beneficiaries; the s33A directions were otiose after removal and were dismissed.

Citation
[2020] NZHC 2680
Parties
Plaintiff; Sole Beneficiary: Dellisse Moleta; First Defendant; Sued as Executor and Trustee of the Estate of Janette Dianna Moleta: Dellisse Moleta; Second Defendant; FPA Claimant: Jolene Schollum; Third Defendant; FPA Claimant and Applicant for Removal: Lorraine Moleta
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 October 2020
Procedural Posture
Consolidated High Court Proceedings: Constructive Trust Claim and Family Protection Act Claims / Interlocutory Hearing on Removal of Executor/trustee and Application for Directions Under S33 A; Pre Trial (trial Set May 2021)
Outcome
Application to remove executor/trustee granted; s33A application dismissed; independent trustee appointed
Legal Topics
Removal of Trustee/executor, Conflict of Interest in Trustee Litigation, Section 33 a Trustee Act Directions, Constructive Trust Claim, Professional Representation and Costs
Trusts Estates and Probate Succession/family Protection Act Claims Civil Procedure Removal of Trustee/executor Conflict of Interest in Trustee Litigation Section 33 a Trustee Act Directions Constructive Trust Claim +1 more

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Parties

Dellisse Moleta

Plaintiff; Sole Beneficiary

Dellisse Moleta

First Defendant; Sued as Executor and Trustee of the Estate of Janette Dianna Moleta

Jolene Schollum

Second Defendant; FPA Claimant

Lorraine Moleta

Third Defendant; FPA Claimant and Applicant for Removal

Procedural Posture

Consolidated High Court Proceedings: Constructive Trust Claim and Family Protection Act Claims / Interlocutory Hearing on Removal of Executor/trustee and Application for Directions Under S33 A; Pre Trial (trial Set May 2021)

Legal Issues

  1. 1 Whether removal of the executor/trustee is expedient to protect beneficiaries and the estate
  2. 2 Whether orders under s33A Trustee Act are sufficient to regulate a trustee suing the estate
  3. 3 Whether trustee can act even‑handedly while litigating in a personal capacity against the estate

Ratio Decidendi

Removal was ordered because the trustee (Dellisse) was materially conflicted by suing the estate she administered, there was insufficient confidence she would act with the required even‑handedness and full disclosure given her litigation conduct and history of changing representation; an independent, experienced trustee (Christopher Darlow) was necessary to protect the estate and beneficiaries; the s33A directions were otiose after removal and were dismissed.

Court Disposition

Application to remove executor/trustee granted; s33A application dismissed; independent trustee appointed

Orders

  • Application of Lorraine to remove Dellisse as executor and trustee granted
  • Christopher Darlow appointed executor and trustee of Janette's estate subject to Kiwibank mortgagor confirming he will not assume unlimited liability for mortgages on estate titles