HOWARTH v HOWARTH [2019] NZHC 898

HOWARTH v HOWARTH [2019] NZHC 898

Summary judgment was dismissed because there are genuine and material conflicts of evidence on central factual issues (whether payments were loans or gifts and whether the defendant unreasonably refused investigation) so the defendant cannot be said to have no arguable defence; those issues require trial-level fact findings and credibility assessments before any exercise of the s21/s51 removal discretion.

Citation
[2019] NZHC 898
Parties
First Plaintiff: DAVID JOHN MACMILLAN HOWARTH; Second Plaintiff: JACQUELINE ELLEN KEEN; Defendant: ANDREW ROBERT HOWARTH
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 April 2019
Procedural Posture
Removal of Executor and Trustee; Administration of Estate; Family Protection Act Claim / Summary Judgment Application (dismissed)
Outcome
Summary judgment application dismissed
Legal Topics
Removal of Executor/trustee, Conflict of Interest, Investigation of Estate Assets, Presumption Gift Vs Loan, Limitation Defences
Trusts Estate Administration and Probate Civil Procedure — Summary Judgment Family Protection Act Claims Removal of Executor/trustee Conflict of Interest Investigation of Estate Assets Presumption Gift Vs Loan +1 more

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Parties

DAVID JOHN MACMILLAN HOWARTH

First Plaintiff

JACQUELINE ELLEN KEEN

Second Plaintiff

ANDREW ROBERT HOWARTH

Defendant

Procedural Posture

Removal of Executor and Trustee; Administration of Estate; Family Protection Act Claim / Summary Judgment Application (dismissed)

Legal Issues

  1. 1 Whether historic payments from the deceased's accounts to the defendant or others were loans or gifts
  2. 2 Whether the defendant's position creates a conflict of interest requiring removal as executor/trustee
  3. 3 Whether the plaintiffs have established that the defendant has no defence to the removal claim on summary judgment

Ratio Decidendi

Summary judgment was dismissed because there are genuine and material conflicts of evidence on central factual issues (whether payments were loans or gifts and whether the defendant unreasonably refused investigation) so the defendant cannot be said to have no arguable defence; those issues require trial-level fact findings and credibility assessments before any exercise of the s21/s51 removal discretion.

Court Disposition

Summary judgment application dismissed

Orders

  • Summary judgment application dismissed
  • Costs on the application reserved