KELLERMAN v KELLERMAN-THORNTON [2020] NZHC 2297

KELLERMAN v KELLERMAN-THORNTON [2020] NZHC 2297

Court found significant categories of expenditure claimed by the executor were unreasonable (multiple business class airfares, extensive Hilton accommodation and restaurant meals, and all costs attributed to the executor's husband), the executor failed to exercise required caution when in inherent conflict as a...

Source-derived case information.

Citation
[2020] NZHC 2297
Parties
Applicant: Brendan Eugene Kellerman; Respondent: Margaret Yvonne Kellerman-Thornton
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 September 2020
Procedural Posture
Application to Remove Executor Under the Administration Act 1969 / Judgment on Application to Remove Executor and Ancillary Orders (4 September 2020)
Outcome
Application granted in part: s44 account order declined; executor removed and replaced; executor expenses to be reviewed by newly appointed independent executors; limited disallowance of expenses indicated.
Legal Topics
Removal of Executor, Executor Expenses and Indemnity, Account and Inventory (s44 Administration Act), Beneficiary Disclosure Rights, Conflict of Interest
Trusts and Estates Administration of Estates Fiduciary Duties Civil Procedure Removal of Executor Executor Expenses and Indemnity Account and Inventory (s44 Administration Act) Beneficiary Disclosure Rights +1 more

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Parties

Brendan Eugene Kellerman

Applicant

Margaret Yvonne Kellerman-Thornton

Respondent

Procedural Posture

Application to Remove Executor Under the Administration Act 1969 / Judgment on Application to Remove Executor and Ancillary Orders (4 September 2020)

Legal Issues

  1. 1 Whether executor's claimed expenses were reasonably incurred and payable out of the estate (Trustee Act s38)
  2. 2 Whether the executor should be removed under Administration Act s21 and replaced
  3. 3 Whether an order under Administration Act s44 requiring an inventory and account on oath should be made

Ratio Decidendi

Court found significant categories of expenditure claimed by the executor were unreasonable (multiple business class airfares, extensive Hilton accommodation and restaurant meals, and all costs attributed to the executor's husband), the executor failed to exercise required caution when in inherent conflict as a beneficiary-executor and provided incomplete and at times misleading disclosure; an s44 order was unnecessary because an affidavit and statement of assets and liabilities had been produced; removal under s21 was expedient in beneficiaries' interests and an independent experienced executor (Greg Kelly and Colette McKenzie) was appointed to review and determine which expenses were...

Court Disposition

Application granted in part: s44 account order declined; executor removed and replaced; executor expenses to be reviewed by newly appointed independent executors; limited disallowance of expenses indicated.

Orders

  • Application that some executor expenses be disallowed as unreasonable granted in part in accordance with the judgment's findings
  • Application for an order under s44 of the Administration Act that the executor provide an account on oath is declined