New Zealand Case Law: Decisions & Judgments

Topic

Executor removal

Legal area

Court

15 Aug 2023

MANJARREZ v CHISHOLM [2023] NZHC 2184

Citation

[2023] NZHC 2184
Court

High Court

The injunction was continued because overall justice and the protection of residuary beneficiaries required preservation of funds pending a narrow settlement conference; the Court ordered distribution of the bulk of estate funds leaving $30,000 retained, with $5,000 paid temporarily to the executor and $25,000 held by the Court, required transfer of share sale proceeds to the beneficiaries' solicitor, and ordered a settlement conference; the executor remains in office pending resolution.
8 Nov 2022

TAYLOR v DA SILVA (COSTS) [2022] NZHC 2914

Citation

[2022] NZHC 2914
Court

High Court

The applicant acted reasonably in bringing the proceedings in her capacity as executor and is entitled to reimbursement from the estate of her actual and reasonable costs of $12,199; the respondent must pay the applicant scale costs of $5,736 plus disbursements of $540; increased costs were not awarded because the respondent's conduct was not so unreasonable as to justify uplift and he promptly consented once proceedings were filed.
26 Oct 2022

YOZIN-SMITH v YOZIN [2022] NZHC 2750

Citation

[2022] NZHC 2750
Court

High Court

The Court held that on the material before it the plaintiff had an arguable case that special circumstances existed to justify a beneficiary derivative action, that joinder of executors under HCR r 4.56 was permissible, and that factual issues (including late knowledge under the Limitation Act) were sufficiently in dispute to preclude summary judgment or strike out of the second and third causes of action; accordingly the executors were joined as defendants and the defendants' interlocutory applications for summary judgment and strike out were dismissed.
31 Mar 2022

MOLETA v DARLOW [2022] NZHC 620

Citation

[2022] NZHC 620
Court

High Court

Award 2B scale costs to Jolene Schollum and Lorraine Moleta for successful FPA and interlocutory applications; decline 25% uplift for one FPA step; deny second counsel certification; award 50% uplift for all steps relating to the Constructive Trust claim because that claim lacked merit and plaintiff repeatedly failed to comply with rules and directions, thereby contributing unnecessarily to time and expense; costs to be borne by plaintiff Dellisse Moleta personally and may be paid from her share of the estate subject to authority.
14 Nov 2019

VAN GOCH v VAN GOCH & ORS [2019] NZHC 2978

Citation

[2019] NZHC 2978
Court

High Court

Costs in relation to the application to remove the plaintiff as executrix are to lie where they fall because the outcome was a practical compromise benefiting all beneficiaries; costs in relation to the application to debar opposing counsel were awarded to the first and second defendants on a 2B basis ($4,683.00) with disbursements of $394.06 and no uplift, as the debarment challenge failed after filing of affidavit evidence and was not frivolous enough to warrant an uplift.
25 May 2018

ARMSTRONG v KEENAN [2018] NZHC 1196

Citation

[2018] NZHC 1196
Court

High Court

Where entrenched conflict between co-trustees prevents proper administration and causes asset deterioration or accruing liabilities, the court may remove trustees in the beneficiaries' interests; on the facts the conflict made joint administration impracticable, the estate modest and at risk, and the applicant was found suitable to act alone, so removal of the two trustees and appointment of the applicant as sole executor/trustee was ordered.
15 Aug 2017

ATCHISON v BOYD [2017] NZHC 1942

Citation

[2017] NZHC 1942
Court

High Court

The Court appointed Christopher Robert Darlow as a court expert under r 9.36 to inquire and report whether the fees charged to Ms Boyd were reasonable in responding to instructions, whether fees were reasonable in all the circumstances, and whether any work was personal to Ms Boyd and not claimable from the estate; the report was ordered to be filed by 6 October 2017, the expert's costs were to be paid initially from the estate (subject to later adjustment), and all questions of costs were reserved.
12 Jul 2017

BIRD & ORS v BIRD [2017] NZHC 1612

Citation

[2017] NZHC 1612
Court

High Court

The Court removed the named executor/trustee because, on the facts, his conduct (threats to arbitrarily dock beneficiaries' shares, intention to use estate funds for contested litigation, delays in obtaining probate and in settling estate assets, and demonstrable hostility toward certain beneficiaries) prejudiced the interests of the beneficiaries and made it expedient to appoint an independent corporate trustee under the Court's jurisdiction (s51 Trustee Act and inherent equity jurisdiction); New Zealand Guardian Trust Company Ltd (Perpetual Guardian) was appointed as trustee.
6 Jun 2017

GILLIBRAND AND GILLIBRAND AS TRUSTEES OF THE CHRIS AND MARY GILLIBRAND FAMILY TRUST v SWANEPOEL & ANOR [2017] NZHC 1209

Citation

[2017] NZHC 1209
Court

High Court

The court held that counsel (Holgate) breached his duty by advancing and maintaining serious mistreatment allegations in opposition to the removal application without a reasonable evidential foundation and without adequate advice on the high risk (including indemnity costs), causing the trustees to incur indemnity costs of $63,950 and modest general damages; the solicitor (Swanepoel) did not breach his duty given instructions received and reliance on counsel and client choices.
19 Jun 2015

URLICH v URLICH [2015] NZHC 1393

Citation

[2015] NZHC 1393
Court

High Court

The Court exercised its equitable jurisdiction to treat the Herne Bay property as an asset of the enhanced estate, preserved the applicant's ability to purchase but adjusted the purchase price to $1,800,000 to share post-valuation appreciation equitably due to respondent's obstructive position on costs; specific costs up to 13 October 2014 (respondent's counsel) and parties' costs for implementation and the 11 June 2015 hearing are to be met from the enhanced estate, with other intervening costs to lie where they fall.