In the estate of BEAVER [2017] NZHC 241
It was premature to authorise distribution of the missing beneficiary's one‑half share to the deceased's children; instead the court authorised debiting Ms Taina's share with the costs incurred locating her, ordered the remaining balance to be held on trust, required quarterly advertisements in a Fiji daily...
Source-derived case information.
- Citation
- [2017] NZHC 241
- Parties
- Applicant/executor: Patricia Diane Wardill; Applicant/executor: David Robert Pasley; Deceased: Neil William Beaver; Beneficiary: Filomena Taina
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 23 February 2017
- Procedural Posture
- Application Under S 76 Trustee Act 1956 / Application for Directions on Distribution of Estate (on the Papers)
- Outcome
- Primary application to distribute the entire estate to the children refused; alternative application granted in part
- Legal Topics
- Administration of Estate, Missing Beneficiary, Distribution of Residuary Estate, Trustees' Powers and Duties, S76 Trustee Act 1956
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patricia Diane Wardill
Applicant/executor
David Robert Pasley
Applicant/executor
Neil William Beaver
Deceased
Filomena Taina
Beneficiary
Procedural Posture
Application Under S 76 Trustee Act 1956 / Application for Directions on Distribution of Estate (on the Papers)
Legal Issues
- 1 Whether executors may distribute entire estate to the deceased's children when a residuary beneficiary cannot be located
- 2 Whether executors may debit a missing beneficiary's share with costs incurred locating them and hold the balance on trust pending further order
- 3 What interim steps the court should order to attempt to locate the missing beneficiary
Ratio Decidendi
It was premature to authorise distribution of the missing beneficiary's one‑half share to the deceased's children; instead the court authorised debiting Ms Taina's share with the costs incurred locating her, ordered the remaining balance to be held on trust, required quarterly advertisements in a Fiji daily newspaper to locate her, and directed the executors to renew the application if she had not come forward by 31 December 2017.
Court Disposition
Primary application to distribute the entire estate to the children refused; alternative application granted in part
Orders
- Full distribution to the three children is not authorised at this stage
- Executors authorised to debit Filomena Taina's one‑half share with the costs incurred in attempting to locate her
Full Case Text
Judgment text and source record
1 paragraphs
In the estate of BEAVER [2017] NZHC 241 [23 February 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2017-404-224[2017] NZHC 241IN THE MATTER of an application pursuant to s 76 TrusteeAct 1956ANDIN THE MATTER of the Estate of NEIL WILLIAMBEAVERPATRICIA DIANE WARDILL andDAVID ROBERT PASLEYApplicantsHearing: On the papersAppearances: D Pasley for ApplicantsJudgment: 23 February 2017JUDGMENT OF LANG J[on application for orders in relation to distribution of estate]This judgment was delivered by me on 23 February 2017 at 11 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Neil William Beaver died in Fiji on or about 26 December 2014. He left a will dated 3 November 2010 in which he directed that his residuary estate was to be divided into two equal parts. The first part was to be distributed to his then de-facto partner Filomena Taina and to her children in the event that she did not survive him. The balance of the residuary estate was to be divided between such of Mr Beaver'sthree children as survived him.[2] The executors of Mr Beaver's will have now obtained probate in both NewZealand and Fiji and have realised all of Mr Beaver's assets. This has resulted in theestate receiving a total sum of approximately $120,000 less expenses.[3] The executors have not yet been able to locate Ms Taina notwithstanding advertisements they have placed in the Fiji Times newspaper and enquiries they have made regarding her whereabouts through a firm of solicitors in Fiji.[4] The executors of Mr Beaver's will now seek an order authorising them to distribute Mr Beaver's entire estate between his three children in equal shares.Alternatively, they seek an order that Ms Taina's share of the estate be debited withthe costs the executors have incurred in attempting to locate her and the balance thereafter remaining be held on trust.[5] I consider it is too early at this stage to authorise the distribution of MsTaina's one-half share of the estate to the three children of the deceased. I therefore make orders in terms of the alternative application advanced by the executors. In the event that Ms Taina has not come forward by 31 December 2017, the executors should renew their application. In the meantime, the executors should place quarterly advertisements in a daily Fiji newspaper seeking to establish contact with Ms Taina.Lang JSolicitors:Wardill Pasley Law, Auckland