Re Estate Armstrong

JurisdictionNew Zealand
CourtHigh Court
JudgeGendall J
Judgment Date25 Mar 2015
Neutral Citation[2014] NZHC 558
Docket NumberCIV-2014-409-000151

[2014] NZHC 558


Gendall J


In The Matter Of The Estate Of Ursula Muriel Emma Armstrong

Peter James Armstrong

Application under s21 Administration Act 1969 (Discharge or removal of administrator) to remove executor and administrator — deceased's two sons appointed as executors under the will — probate of will granted in 2009 — one of the sons owed the estate $85,000 and had failed to respond to calls to pay that amount back — substantial efforts made to contact and locate him — estate could not be distributed — whether missing brother should be removed as an executor to enable the proper and efficient administration of the deceased's estate for the benefit of all beneficiaries.

The issue was whether Leonard should be removed as an executor to enable the proper and efficient administration of the deceased's estate for the benefit of all beneficiaries

Held: It was clear that little or no progress had been made in the administration of the deceased's estate since probate was granted over five years ago. There were certain funds held for the estate (other than Leonard's debt) which would be able to be distributed at this point.

Under s21 the Court in exercising the power of removal and appointment was able to do so on any terms and conditions thought fit.

In this case the real priority to be addressed by the Court had to be the proper and efficient administration of the deceased's estate for the benefit of all beneficiaries. This was overlaid in the circumstances prevailing here by the general duty of an executor or trustee to “act even-handedly in the best interests of all the beneficiaries and claimants against the estate” (Estate of Farnsworth v Farnsworth).

Leonard was likely to be aware of the death of his late mother and clearly he that he owed money to the estate. It was quite possible that he remained out of contact in a deliberate effort to avoid repaying his debt to his late mother's estate.

Under all the circumstances here that it was expedient toremove Leonard as administrator of the deceased's estate in order that administration could properly proceed.

The original grant of probate by had proved to be entirely abortive in light of the absence of Leonard. Nothing was able to happen while he remained an administrator of the estate and was completely out of contact.

Ex Parte order that Leonard be removed as an executor and administrator of the will.


Gendall J

(Dealt with on the papers)


Ursula Muriel Emma Armstrong (the deceased) died in Christchurch on 10 October 2008. Probate of her last will dated 31 May 2000 was granted by the High Court at Christchurch on 21 January 2009. The deceased's sons Leonard Andrew Armstrong (Leonard), and Peter James Armstrong (Peter), were named as executors and administrators of the deceased's estate in her will.


Peter is the applicant in the present proceeding. Leonard apparently is unable to be located despite a number of efforts which have been made to find his whereabouts, all of which have failed. As a consequence the estate of the deceased cannot be administered.


In addition, Leonard owes a significant debt to the deceased's estate, he having been the recipient of a loan of some $85,000 from his parents (now devolved to the deceased) for his purchase of a property at Woodend in 1999.


Although Leonard is also a beneficiary under the will of the deceased his debt owing to her estate it is said is likely to exceed any amount payable under the will.


And in the meantime other beneficiaries under the deceased's will are unable to take their proper share in terms of that will as, with the absence of Leonard, the will cannot be administered.


Consequently the applicant Peter in this proceeding seeks an order removing Leonard as an executor and administrator under the deceased's will so that this role can be held solely by Peter and administration of the estate can proceed.

Additional background

Under her 31 May 2000 will, in addition to appointing Leonard and Peter as her executors and trustees, the deceased after payment of her debts and funeral expenses left her residuary estate to be divided equally amongst her children on their attaining the age of 25 years. At paragraph 4 of her will the deceased stated specifically:

4. As the major asset in my estate is the debt owed to me and my husband Willie Armstrong by my son Leonard Andrew Armstrong and Janine Elizabeth Kennard pursuant to a deed of acknowledgment of debt dated 27 August 1999 advanced to assist in the purchase of 25 Panckhurst Drive, Woodend, I direct that my trustees are not to require payment of the debt to my estate for a period of four years from the date of my death.


Given that the deceased died on 10 October 2008, that four year period has now elapsed.


The deceased's former husband, Willie Armstrong, died in September 2000, some eight years before the date of her death.


Prior to the date of her death, demands were made on her behalf of Leonard and his wife Janine Kennard for repayment of the $85,000, loan but these met with no response.


Since at least 2005, Peter states that he and other members of the family have been quite unable to make any contact...

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