REID v SIMMONDS [2017] NZHC 122

REID v SIMMONDS [2017] NZHC 122 [10 February 2017]IN THE HIGH COURT OF NEW ZEALANDMASTERTON REGISTRYCIV-2017-435-1[2017] NZHC 122IN THE MATTER of the Administration Act 1969BETWEEN LINDA MAY REIDApplicantAND MARJORIE ELEANOR SIMMONDSRespondentHearing: On the papersCounsel: J H Waugh for ApplicantJudgment: 10 February 2017JUDGMENT OF ELLIS JI direct that the delivery time of this judgment is4 pm on the 10th day of February 2017[1] Mrs Simmonds holds an undivided half share of a property at 18 Colville Street in Masterton as executrix and administrator of the estate of her late husband, Robert Baden Simmonds and a half share personally. Mrs Simmonds has recently lost the capacity to manage her own affairs. Her daughter, Linda Reid, now does so for her, pursuant to an enduring power of attorney.[2] Ms Reid has executed a sale and purchase agreement for the Colville Street property on her mother's behalf. She has deposed that she was unaware that the power of attorney did not permit her to do this, insofar as that half of the property held by her mother as administrator was concerned. The difficulty was only discovered when the sale became unconditional and the transfer imminent.[3] The purchasers have since moved into the property but the title has not been able to be transferred.[4] Ms Reid therefore now seeks to remove her mother as administrator and to appoint the Public Trust at Masterton in her place, pursuant to s 21 of the Administration Act 1969, which relevantly provides:(1) Where an administrator becomes incapable of acting as administrator or unfit to so act, the court may discharge or remove that administrator, and may if it thinks fit appoint any person to be administrator in his or her place, on such terms and conditions in all respects as the court thinks fit.(2) The administrator so removed or discharged shall, from the date of that order, cease to be liable for acts and things done after that date.(3) Upon any administrator being discharged or removed as aforesaid (whether or not any other administrator is appointed) all the estate and rights of the previous administrator or administrators which were vested in him or her or them as such shall become and be vested in the continuing administrator or administrators (including any administrator appointed under subsection (1)) who shall have the same powers, authorities, discretions, and duties, and may in all respects act, as if he or she or they had been originally appointed as the administrator or administrators.[5] Ms Reid's brothers, Allan Simmonds and Rodney Simmonds (who are theother beneficiaries under their father's will) consent to the application, as does the Public Trust.[6] A medical report from a psychogeriatrician, Dr Anthony Duncan, dated 14 June 2016 confirms that Mrs Simmonds has Alzheimer's disease and is incapable of managing her own affairs.[7] I am therefore satisfied that:(a) Mrs Simmonds is incapable of acting as administrator; and(b) it is expedient to remove her as administrator and to appoint the Public Trust in her place.[8] This will allow the transfer of the property to be completed.[9] I therefore make the following orders under s 21 of the Administration Act:(a) Marjorie Eleanor Simmonds is removed as the administrator of the estate of Robert Baden Simmonds; and(b) the Public Trust at Masterton is appointed as administrator of Mr Simmonds' estate in her place.____________________Rebecca Ellis JSolicitors: Moore Law, Whanganui, for Applicant