SMITH v SMITH [2021] NZHC 1489

SMITH v SMITH [2021] NZHC 1489

Given the evidence, including the sworn affidavit from the proposed administrator confirming willingness, terms and relevant experience, the court was justified in granting summary judgment removing the defendant as executor and appointing the independent administrator; the defendant's material did not rebut the...

Source-derived case information.

Citation
[2021] NZHC 1489
Parties
Plaintiff: Thomas Michael Smith; Defendant: Paul Kenneth Smith
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 June 2021
Procedural Posture
Trusts and Estates Removal of Executor / Summary Judgment (interim Followed by Final)
Outcome
Summary judgment entered removing Paul Kenneth Smith as executor and trustee and appointing Douglas Rowan as independent administrator on the terms of his affidavit dated 27 May 2021; costs reserved.
Legal Topics
Removal of Executor, Appointment of Independent Administrator, Summary Judgment, Costs Assessment
Trusts and Estates Probate Civil Procedure Costs Removal of Executor Appointment of Independent Administrator Summary Judgment Costs Assessment

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Thomas Michael Smith

Plaintiff

Paul Kenneth Smith

Defendant

Procedural Posture

Trusts and Estates Removal of Executor / Summary Judgment (interim Followed by Final)

Legal Issues

  1. 1 Whether the court should remove the executor/trustee
  2. 2 Whether an independent administrator should be appointed
  3. 3 Whether summary judgment is appropriate to effect removal and appointment

Ratio Decidendi

Given the evidence, including the sworn affidavit from the proposed administrator confirming willingness, terms and relevant experience, the court was justified in granting summary judgment removing the defendant as executor and appointing the independent administrator; the defendant's material did not rebut the case for removal or the suitability of the proposed appointee.

Court Disposition

Summary judgment entered removing Paul Kenneth Smith as executor and trustee and appointing Douglas Rowan as independent administrator on the terms of his affidavit dated 27 May 2021; costs reserved.

Orders

  • Enter summary judgment removing Paul Kenneth Smith as executor and trustee of the estate of the late Mrs Veronica Smith and appoint Douglas Rowan to replace him on the terms recorded in his affidavit sworn 27 May 2021
  • Costs reserved