Application (Estate of Ellett) for order discharging executor [2019] NZHC 2013

Application (Estate of Ellett) for order discharging executor [2019] NZHC 2013

Because one executor was deceased and the remaining executor sought to be discharged due to serious medical reasons, and because the deceased's codicil endorsed appointment of Wynyard Wood partners together with consent from the majority of interested parties, the Court exercised its powers under Administration Act 1969 s21 and High Court Rules r19.5 to discharge Noel Johnston and appoint Penny Jones as administrator, dispensing with further service.

Citation
[2019] NZHC 2013
Parties
Applicant Trustee and Executor of the Estate of Trevor Robert Ellett: Karl Richard Moreton; Deceased Subject of the Estate: Trevor Robert Ellett; Respondent Current Executor and Administrator to Be Discharged: Noel William Johnston; Proposed Administrator Solicitor to Be Appointed in Place of Noel Johnston: Penny Louise Hughes Jones; Former Executor (deceased): Stuart Callender
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 August 2019
Procedural Posture
Application Under Trustee Act 1956 / Administration Act 1969 (probate/administration) / Application for Discharge of Executor and Appointment of Administrator (on the Papers)
Outcome
Application granted
Legal Topics
Executor Discharge, Appointment of Administrator, Service Dispensation, Probate/administration
Trusts and Estates Probate/administration Civil Procedure Executor Discharge Appointment of Administrator Service Dispensation

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Parties

Karl Richard Moreton

Applicant Trustee and Executor of the Estate of Trevor Robert Ellett

Trevor Robert Ellett

Deceased Subject of the Estate

Noel William Johnston

Respondent Current Executor and Administrator to Be Discharged

Penny Louise Hughes Jones

Proposed Administrator Solicitor to Be Appointed in Place of Noel Johnston

Stuart Callender

Former Executor (deceased)

Procedural Posture

Application Under Trustee Act 1956 / Administration Act 1969 (probate/administration) / Application for Discharge of Executor and Appointment of Administrator (on the Papers)

Legal Issues

  1. 1 Whether the Court should discharge Noel William Johnston as administrator/executor of the estate
  2. 2 Whether the Court should appoint Penny Louise Hughes Jones as replacement administrator/executor under s21 Administration Act 1969
  3. 3 Whether service and representation may be dispensed with under r19.5 High Court Rules 2016

Ratio Decidendi

Because one executor was deceased and the remaining executor sought to be discharged due to serious medical reasons, and because the deceased's codicil endorsed appointment of Wynyard Wood partners together with consent from the majority of interested parties, the Court exercised its powers under Administration Act 1969 s21 and High Court Rules r19.5 to discharge Noel Johnston and appoint Penny Jones as administrator, dispensing with further service.

Court Disposition

Application granted

Orders

  • Leave granted to proceed under r 19.5 High Court Rules 2016 in relation to the Application for Discharge of Noel William Johnston as an Administrator and for appointment of Penny Louise Hughes Jones as a further person to be administrator in his place under s 21 of the Administration Act 1969
  • Service and appointment of representation dispensed with on the basis that seven of the eight major relevant parties of interest consent to the application