JELLYMAN v JELLYMAN [2018] NZHC 210

JELLYMAN v JELLYMAN [2018] NZHC 210 [21 February 2018]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECIV-2017-441-000041[2018] NZHC 210IN THE MATTER of Part 18 of the High Court Rules 2016BETWEEN HAZEL MARIE JELLYMANPlaintiffAND MAURICE RALPH JELLYMANDefendantHearing: 15 February 2018Appearances: A J Harris for the PlaintiffDefendant in person with HJ Yeoman as McKenzie friendJudgment: 21 February 2018JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Wednesday, 21 February 2018 at 3:30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Gifford Devine, HastingsCopy to: DefendantIntroduction[1] The plaintiff, Hazel Marie Jellyman, is a widow living in Hastings. She hasAlzheimer's disease and acts through a guardian ad litem, her grandson Carl RossWaghorn. Mrs Jellyman is a trustee of a trust set up by the will of her late husband.The other trustee is the defendant, her son Maurice Ralph Jellyman.[2] The trust set up by the will of her late husband provides that Mrs Jellyman cancontinue to live in the family home while she remains a widow. The trust also providesthat Mrs Jellyman may ask that the house be sold and another bought in its place. Thathappened previously when she moved from Kaiapoi to Hastings.[3] The present proceedings claim that Mrs Jellyman has asked that the Hastingshouse be sold and another bought in Tauranga near her daughter, Heather MaureenJenkins, who would care for her. It is alleged that Mr Jellyman has been unreasonablein withholding his consent and is motivated in breach of his duties by self-interest asa residuary beneficiary.[4] The proceedings seek an order under s 51 of the Trustee Act 1956 or pursuantto the Court's inherent power replacing Mr Jellyman as a trustee with his sister,Mrs Jenkins. In the alternative, various orders are sought under s 68 of the TrusteeAct as to the sale of the Hastings house and the purchase of a replacement property inTauranga.Factual background[5] The testator, John Malcolm Jellyman, died in Christchurch on 14 January 2001.Probate of his will was granted on 25 January 2001. In his will he appointed his wife(the plaintiff) and his son (the defendant) his executors and trustees.[6] The testator's intention expressed in his will was to establish a trust in relationto his interest in the family home. The trust is for the benefit of Mrs Jellyman andenables her to have the use, occupation and enjoyment of the house while she remainsa widow and personally occupies it. Once the trust ends the property is held for thetestator's children, including the defendant. The will empowers the trustees, at therequest of Mrs Jellyman, to sell the house and use the proceeds of sale in the purchaseof another house to be held upon the same trust.[7] Mrs Jellyman says that she wants to sell her house in Hastings and purchaseanother one in Tauranga to be near her daughter. She has attempted to list the housefor sale, but Mr Jellyman has refused to sign a listing authority. Mr Jellyman has givenno reason for his failure to agree to an open market sale, other than his refusal to incura real estate agent's commission, which he says would adversely impact on the valueof his father's estate. Mrs Jenkins offered to reimburse the real estate agent'scommission, but Mr Jellyman refused the offer.[8] Following further discussions between Mrs Jenkins and her brother,Mrs Jenkins sent Mr Jellyman the listing fee for selling the house on TradeMe.Notwithstanding that Mrs Jenkins had obtained a registered valuer's report valuing thehouse at $326,000, Mr Jellyman listed the house on TradeMe for $425,000. No salehas been able to be achieved at that price.[9] In a document entitled Response and Statement of Defence, filed on 17 January2018, Mr Jellyman states:I agree entirely I have been negative and non responsive in much that involvesthe sale of this Home. However, while the Land Agents are welcome toexpress their opinions on values, I still have the rights, as my Fathers Executor,to attempt to get the best price, in my view.[10] Furthermore, Mr Jellyman does not believe that his mother wishes to move toTauranga. He is of the view that his sister, Mrs Jenkins, has instigated the "push" toshift their mother to Tauranga knowing she is in no fit state of mind to make a rationaldecision of her own.[11] He says that from the time his mother has lived in Hastings she has expressedto him in no uncertain terms many times "Maurice, whatever happens, do not let mego back to the Bay of Plenty, I do not want to live there". Mr Jellyman says his motherhas often spoken of the fact that her husband had other women during their time livingin that region and that it held many bad memories. Mr Jellyman states that if hismother's home must be sold, "it has always been my wish and intent to have her placedin Mary Doyle Retirement Village, Havelock North".Mrs Jellyman's wish to move to Tauranga[12] Mr Jellyman says that his mother has told him in no uncertain terms that shedoes not want to live in the Bay of Plenty. This is, however, contrary to two affidavitssworn by Mrs Jellyman herself, as well as affidavits from two family members andthree independent persons, being her doctor, her solicitor and a real estate agent.[13] In her first affidavit sworn on 12 July 2017, Mrs Jellyman states:3. I wish to go to Tauranga to live close to my daughter. I need to buy ahouse there to live in. I have asked my son, Maurice, to agree to sellthe Hasting's house by listing it with real estate agents. For somereason, he will not do so. I do not understand why.[14] In her second affidavit sworn on 18 December 2017, Mrs Jellyman states:2. In July 2017, I swore an Affidavit in these proceedings in which I saidI wanted to go to Tauranga to live close to my daughter, Heather. Thatis still my wish.3. I want to buy a house in Tauranga and to do that I need to sell mypresent house in Hastings. My son, Maurice, will not agree. I still donot understand why.4. I am frightened of Maurice. I live alone and when I have contact withhim he shouts at me and abuses me. I feel intimidated by him. I amvery worried he will threaten me over the January period when I amalone in the house in Hastings.5. I just want to move away from Hastings to Tauranga to live happilywith my daughter and my grandchildren in the Bay of Plenty.6. I have nobody here in Hastings but Maurice.[15] Mrs Jellyman does, however, have Alzheimer's disease. Her doctor,Andrew Heslop, has sworn an affidavit dated 22 January 2018 in which he gives hisopinion on how Alzheimer's disease affects the plaintiff and records her wish to moveto Tauranga. Dr Heslop states:3. In February 2017, my opinion was sought regarding Hazel Jellyman'scapacity to defend or comprise proceedings before this Court and Istated that, in my opinion, she did not have that capacity. A copy ofmy letter of 23 February 2017 to the solicitors for the Plaintiff isattached as Exhibit "A". My reason for that view, was that litigationis generally stressful, sometimes complex or urgent, and in this case,personal.4. At that time, I also expressed the view that while Mrs Jellymansuffered from Alzheimer's Disease, she was still well able to form aview about her living circumstances. In particular, I said:I believe she has a clear desire to move to Tauranga. She knowsshe wants to move and the reasons for it – i.e. to be closer to herfamily. She understands the benefits to her mental and physicalwellbeing and is clear that she no longer wishes to remain in hercurrent situation. She is able to clearly state the reasons for this.I believe she is able to make choices around her planning for thefuture.5. In December 2017, I was requested again to review Mrs Jellyman'scapacity. After doing so, I confirmed the opinion expressed in myletter of 28 February 2017. I was aware of what Mrs Jellymanproposed to aver in her further affidavit. In my opinion,Mrs Jellyman's Alzheimer's has not deteriorated significantly sinceFebruary 2017.6. I attach as Exhibit "B" a copy of my letter to the solicitors for thePlaintiff dated 18 December 2017. I confirm that Mrs Jellyman isvery clear in her desire to move to Tauranga.7. There is no doubt in my mind that Mrs Jellyman is quite certain aboutwhat she wishes to do and I can see positive benefits to her health andher wellbeing if she is able to do it. Living as she does, alone in ahouse in Hastings, with support only from a person who sheapparently finds intimidating and therefore does not want to rely upon,means that it is likely that her ability to remain independent will becurtailed. As I understand her wishes she wants to live in Taurangawhere she has more general support from her wider family and as aconsequence can remain independent with that support. From a healthperspective maintaining the independence of the elderly where theycan manage with proper support is a desirable outcome. I wouldendorse that for my patient.8. In my opinion, Mrs Jellyman is still able to undertake the role as aTrustee of her late husband's estate where the matters involved arerelatively simple decisions and do not involve complex reasoning orstress.[16] In a letter dated 7 March 2017 sent to Mr Jellyman and attached as Exhibit "A"to an affidavit sworn on 19 May 2017, Mrs Jellyman's solicitor, Neil William Dent,states:4. We have been instructed by your Mother to repeat that she wishes tomove to Tauranga and desires that the Trustees sell the Grove Roadproperty and buy her a new property in Tauranga in which she canreside as provided in her late husband's will. As a Trustee she can seeno disadvantage to the Trust in the buoyant market and therefore againseeks you concurrence and copoeration [sic] within the next ten days.5. As we indicated in our letter of the 13th of December the onlyalternative available to Mrs Jellyman is litigation in order to have theCourt review your decision or replace you as a Trustee.[17] In an affidavit sworn on 18 May 2017, a real estate agent, Alisa Jane Kennedy,also states:1. I am a Sales Consultant employed by Tremain Real Estate at Hastings.I have never met the Defendant.2. In November 2016 I was contacted and asked to attend at the propertyknown as 9/212 Grove Road, Hastings. There I met with the PlaintiffMrs Hazel Jellyman. She was an elderly lady living there alone. Shetold me she wished to list the property for sale because she wished tomove to Tauranga.5. Later I learned from Mrs Jellyman's Solicitors that to list the propertyI also needed to obtain the signature of Mr Maurice Jellyman theTrustee of her late Husband's estate. I was informed that Mr MauriceJellyman refused to sign the Listing Authority.6. Tremain Real Estate therefore halted any sales action.[18] Cheryl Lorraine Robinson is the plaintiff's niece. She is presently manager atthe Chatham Club in Hastings, which is a support organisation for persons sufferingfrom Alzheimer's disease. She is also a former nurse. In an affidavit sworn on 18 May2017, Ms Robertson states:2. While Hazel and I have always had a connection I became moreinvolved with her last winter through the [Chatham] Club. PersonallyI have observed the following:a. Hazel is a very lonely and frail old lady living alone in herunit on Grove Road waiting for the next person to visit her.Unless her daughter travels from Tauranga, nobody does.b. In late 2016 she decided she wanted to go to Tauranga and benear her daughter. She was optimistic about that and got intoa very good frame of mind about it. She was happy whendiscussing it with me.c. She could not understand why her son Maurice was stoppingher selling her house. She did not understand the legal issues.d. Maurice's resistance has caused her to become depressed in away which I would describe as situational depression. Thataffects her health. If she was able to move while maintaininga little of her independence I think that depression wouldresolve.e. Hazel is terrified about Maurice coming to her home. Shedoes not want him there.[19] Finally, Mrs Jenkins has also filed an extensive affidavit in support of hermother's application. In her affidavit sworn on 17 May 2017, Mrs Jenkins states:5. As my mother has grown older, and with the slow onset ofAlzheimer's Disease, her ability to manage on her own and maintainher independence has decreased. She has become forgetful and hermemory of recent events is not as good as it was. Her dependenceupon me has increased and she has wanted to move closer to me forthat purpose. It is apparent to me that my mother can more easilymaintain her independence by being in Tauranga in an apartment in aretirement village where I can provide the daily support she wants. Atmy mothers request I have taken over supporting her in day to dayactivities such as groceries, banking utility bills medical, ChathamClub (alzheimers support club), and option assessments as my motherhas not wanted to continue with Maurice because she feelsintimidated, bullied and humiliated by him.6. Sadly, now my brother Maurice provides no support to my mother inHastings and appears to wish that she simply vacate the house so thatit falls into the residue of my father's Will that might benefit him. Thatis the only conclusion I can draw from his actions as a Trustee and hiscomments to me on the telephone.7. My mother has told me repeatedly that she wants to sell the house andmove to Tauranga. She cannot understand why she needs Maurice'sconsent to sell "her house" and why he is involved in preventing it. Ihave tried explaining the Trust's interest in it to her, but she does notunderstand or if she does, remember what she has been told.Mr Jellyman's relationship with his mother[20] As noted above, Mrs Jellyman states in her affidavit sworn on 18 December2017 that she is frightened of Mr Jellyman and that he shouts at her and abuses her.[21] Mr Jellyman's behaviour towards his mother is also the subject of twoaffidavits by independent real estate agents who contacted Mr Jellyman following hislisting of the house for sale on TradeMe. Kelly Mary Riches was one of the real estateagents who met Mr Jellyman at the property. She states:2. While I was present in the room and Kaye Harrison was discussingwith Mr Jellyman [sic] what she could do, Mr Jellyman became veryaggressive and unpleasant with his mother Hazel. She had startedtalking about the need to have her daughter involved in the transactionand he became irritated. He told her to "fucking shut up" and said thatshe didn't even know what was going on. He was quite aggressiveand overbearing regarding his mother and I felt embarrassed but at thesame time very concerned about his attitude and behaviour.3. Mr Jellyman became quite heated with his mother so Kaye Harrisonand I decided to split them up and Mr Jellyman took me on a tour ofthe property. Once we returned to the main room Mr Jellyman saidhe would meet us there the next day. An appointment was made tomeet Mr Jellyman at the property the following day. I attended withKaye. Mr Jellyman did not keep the appointment.4. I was still really concerned about Mrs Jellyman. She was an old andfrail lady. It appeared to me that she was being bullied and abusedand in discussion with Kaye Harrison we decided that we shouldtelephone her daughter about that. I found that contact inMrs Jellyman's telephone diary with her knowledge, and Kayecontacted her daughter.[22] In her affidavit, sworn on 17 May 2017, Mrs Jenkins states:18. Sadly, I did not find Kay Harrison's [sic] advice to me a surprise. Ihave found my brother Maurice to be a bully. I have found him to beaggressive and dominating with my mother. That I suspect is part ofthe reason she wishes to move away.[23] Mr Jellyman acknowledges his behaviour towards his mother. In his Responseand Statement of Defence, he states:With regard to my language and supposed "Bullying". I make no apologiesfor being firm and direct and yes, how I speak to my Mother can be construedas offensive and derogatory but it is not intended to be and has been that wayall my adult life. At the time expressed by Kelly Mary Riches, in her Affidavit,I was very frustrated with my Mother at that moment and felt that she was notexpressing her wishes but those of my Sister.[24] In an affidavit filed by Harold James Yeoman in support of the defendant,sworn on 16 January 2018, Mr Yeoman confirms Mr Jellyman's manner of speakingto his mother. He states:5. I have accompanied Maurice while visiting his Mother several times.I have spoken to him with regard [sic] the way he speaks to her. It isunnecessary but I must add that I am very well aware he does sowithout intending to be abusive. I speak to him often on job sites forthe same issue. Mr Jellyman's proposal[25] Mr Jellyman says he now has no issue with selling the house and proposes thatthe parties should prepare a brief of why Mrs Jellyman should live where and then anindependent person should discuss these options with her and allow her to decide whatshe wishes to do.[26] Mr Jellyman says he will accept his mother's decision, but believes that hismother has been coerced into falsely stating that she wishes to move to Tauranga andmaking malicious statements about being afraid of him. He does not accept the truthof his mother's statements in her affidavits nor the evidence of her doctor and of hersolicitor and says, without evidence, that his sister, Mrs Jenkins, was present when theaffidavits were sworn.[27] Mr Jellyman told me that:This whole exercise was contrived on 18 January 2001 when my sister wastoo lazy to walk from the lounge down to the cow shed where my two brothersand myself, along with her son, divided dad's tools up equally between thefour of us and she made up her mind there and then that no matter what shewas going to take control of mum's life, mum's finances to her own benefit.Power of appointment of new trustee[28] Section 51(1) of the Trustee Act gives the court a general power to appoint newtrustees. It provides:51 Power of court to appoint new trustees(1) The court may, whenever it is expedient to appoint a new trustee ornew trustees, and it is found inexpedient, difficult, or impracticable soto do without the assistance of the court, make an order appointing anew trustee or new trustees, either in substitution for or in addition toany existing trustee or trustees, or although there is no existing trustee.[29] In the present case, the assistance of the court is required because there is nopower to appoint or remove trustees conferred by the trust set up in the deceased'swill.[30] Section 51(2) lists five situations where the court may make an order unders 51(1). The first listed situation is where the court finds that a trustee has"misconducted himself in the administration of the trust".[31] It is, however, clear that the court is not limited to those five situations ass 51(2) commences with the words "In particular and without prejudice to thegenerality of the foregoing provision" (that is, s 51(1)). It is also evident from caselaw that the criteria under which the court may act pursuant to s 51(1) is somewhatbroader that simply misconduct.1 The main guide to the exercise of the court's powermust be the welfare of the beneficiary or beneficiaries. Other guiding principlesinclude the settlor's intentions, the promotion of the purposes of the trust and neutralitybetween beneficiaries.Discussion[32] I have no doubt that Mr Jellyman loves his mother and does care in a generalway for her health, well-being and welfare. I also acknowledge that Mr Jellyman hasprovided significant support to his mother over the years. That support is, however,now much less. Mr Jellyman explains:When my ability to care for my Mother, as I had been, was removed by theinsistence of my Sister that all four Siblings needed to be holders of the POAand that, I believe, she also gained power of my Mothers bank account bycoercing my two Brothers into supporting her, I insisted that all three of mySiblings should then step up and do their share and removed some of mysupport.[33] Mr Jellyman says he now visits his mother at least once a week when she isnot away, but he no longer looks after her lawn or garden. Nor does he take his mothergrocery shopping or to medical appointments, but says if necessary he would resumegiving his mother such assistance. Mr Jellyman does acknowledge that he has beenchastised for his language and rebuked for how he speaks to his mother, but says thatat no time has she indicated he should not visit, nor that she is afraid of his presence.1 For example, see Vincent v Stewart HC Auckland M671-IM02, 17 April 2003 at [30] and Powellv Powell [2014] NZHC 476 at [54].[34] The guiding principle for the court in determining this application is thewelfare of Mrs Jellyman. Here I accept the evidence of Mrs Jellyman's doctor, thatfrom a health perspective, maintaining the independence of the elderly where they canmanage with proper support is a desirable outcome. He is of the opinion thatMrs Jellyman's ability to remain independent will be curtailed if she continues to livealone in a house in Hastings with support only from a person who she apparently findsintimidating and therefore does not want to rely upon.[35] I also accept the evidence from a number of different persons, both familymembers and others, that Mrs Jellyman does wish to move to Tauranga to be near heronly daughter, who can offer close and continuous support to her. I note thatMr Jellyman acknowledges getting angry with his mother and abusing her when shetried to express her wishes to the two real estate agents because he felt she was merelyexpressing his sister's wishes. This does indicate to me something of a closed mind.[36] While Mr Jellyman now says he will agree to the sale of the house, his pastconduct does not give me any confidence that the sale process will proceed smoothlyif he remains a trustee under his father's will. Even if the sale process did proceedsmoothly, Mr Jellyman remains of the view, without any evidence, that his mother hasbeen coerced into making the statements in her two affidavits that she wishes to moveto Tauranga. Thus, I can foresee real difficulty in reaching agreement as to whereMrs Jellyman is then to live. Mr Jellyman wishes, and intends "to have her placed" inMary Doyle Retirement Village. I am of the view that Mrs Jellyman should be free tomake her choice about where she lives after the house is sold. In that regard,Mrs Jellyman's clearly expressed wish is to move to Tauranga.[37] The settlor of the trust, Mrs Jellyman's husband, clearly intended that sheshould have the benefit of living in the family home or its substitute for as long as shewas able. His intentions may be thwarted if Mrs Jellyman is not able to receive closeand continuous support from family members.[38] I am also of the view that the sale of the house in Hastings and the purchase ofanother one in Tauranga will not disadvantage the ultimate beneficiaries, being thetestator's children. In his affidavit sworn on 19 May 2017, Mrs Jellyman's solicitor,Mr Dent, states that he is not aware of any difference in the property market inTauranga rather than Hawkes Bay that might potentially cause a loss to the trust thatwould not otherwise occur.[39] In all the circumstances, I found that Mrs Jellyman has proved the case forreplacement of her son as a trustee under her husband's will and give judgment forher. I make the following orders:(a) An order removing the defendant as a trustee of the trust created byclause 4 of the will of John Malcolm Jellyman.(b) An order appointing Heather Maureen Jenkins as a trustee in the estateof John Malcolm Jellyman in place of the defendant.(c) An order vesting the property, more particularly described as, first, onetwentieth share in an estate in fee simple in 9149 square metres, moreparticularly described as Lot 3 on Deposited Plan 25048, and secondly,as Flat 8 on Deposited Plan 25525, being together contained incomposite computer register title HBV4/713, in the plaintiff HazelMarie Jellyman and Heather Maureen Jenkins.(d) An order for costs against the defendant on a 2B basis together withreasonable disbursements as fixed by the Registrar._________________________Woolford J