McGregor v McGregor, Stokes and McGregor as executors of the Estate of JD McGregor [2016] NZHC 3142

McGregor v McGregor, Stokes and McGregor as executors of the Estate of JD McGregor [2016] NZHC 3142

Residuary beneficiaries possess a present vested equitable remainder in the deceased's share (or its proceeds) that is capable of being directly affected by the s 339 application; the Court therefore has jurisdiction under r 4.56 to order joinder and should exercise its discretion to join the beneficiaries as further defendants because the executors are unlikely to advance their position and the Court will be assisted by hearing the beneficiaries' views.

Citation
[2016] NZHC 3142
Parties
Plaintiff and Defendant (executor/trustee): Judith Ann McGregor; Defendant (executor) and Applicant: Mark Andrew McGregor; Defendant (executor): Natasha Marie Stokes; Applicant (residuary Beneficiary): John Brendan McGregor; Applicant (residuary Beneficiary): Erin Margaret Pusich
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 December 2016
Procedural Posture
Property Law Act 2007 S 339 Application (sale of Co Owned Residential Property) / Interlocutory — Application for Joinder Under High Court Rules R 4.56
Outcome
Joinder granted; applicants joined as further defendants; case management conference scheduled.
Legal Topics
Joinder, Life Interest and Remainder, Sale of Property Under Property Law Act S339, Executor/trustee Duties, Residuary Beneficiary Rights
Property Law Trusts and Estates Civil Procedure Joinder Life Interest and Remainder Sale of Property Under Property Law Act S339 Executor/trustee Duties Residuary Beneficiary Rights

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Parties

Judith Ann McGregor

Plaintiff and Defendant (executor/trustee)

Mark Andrew McGregor

Defendant (executor) and Applicant

Natasha Marie Stokes

Defendant (executor)

John Brendan McGregor

Applicant (residuary Beneficiary)

Erin Margaret Pusich

Applicant (residuary Beneficiary)

Procedural Posture

Property Law Act 2007 S 339 Application (sale of Co Owned Residential Property) / Interlocutory — Application for Joinder Under High Court Rules R 4.56

Legal Issues

  1. 1 Whether residuary beneficiaries have a present vested equitable interest in the deceased's share that may be directly affected by the s 339 application
  2. 2 Whether the Court has jurisdiction under High Court Rules r 4.56 to order joinder of residuary beneficiaries where executors are already parties (interaction with r 4.23)
  3. 3 Whether the Court should exercise its discretion to order joinder given executors are not acting and beneficiaries seek to be heard

Ratio Decidendi

Residuary beneficiaries possess a present vested equitable remainder in the deceased's share (or its proceeds) that is capable of being directly affected by the s 339 application; the Court therefore has jurisdiction under r 4.56 to order joinder and should exercise its discretion to join the beneficiaries as further defendants because the executors are unlikely to advance their position and the Court will be assisted by hearing the beneficiaries' views.

Court Disposition

Joinder granted; applicants joined as further defendants; case management conference scheduled.

Orders

  • The applicants are joined as further defendants to this proceeding.
  • A case management conference is to be allocated on the first available date after 1 February 2017 for the purpose of allocating a hearing date and timetabling steps in the lead up to the hearing.