Minute Book:131 AOT 230 IN THE MAORI LAND COURT OF NEW ZEALAND AOTEA DISTRICT Place: Whanganui. Present: C M Wainwright, Judge Date: 15 October 2003 Application No: A 19990010926 Subject: A20010004689 Section: 165/93 & 238/93 Estate Elizabeth May Henson or May Henson or May Brown or Mable Brown' or Elizabeth May Brown RESERVED DECISION Introduction Two applications are before the Court in respect of this' long outstanding estate administration. The first, A 19990010926 ("the Enforcement Application"), was filed on 7 October 1999 by Ngaere Gratton pursuant to s238 of Te Ture Whenua Maori Act 1993 ("the Act") to enforce the obligations of the executrix, Keretewha Fleming, in terms of the trusts created by the will of Elizabeth Henson ("the Deceased"). The second, A20010004689 ("the Succession Application"), was filed by Jessica Beaumont on 6 June 2001 pursuant to s165 of the Act to vest the lands of the Deceased in terms of the will. Both Mrs Gratton and Ngaere Jessica Beaumont are beneficiaries of the will, being stepchildren of the Deceased, ("the Applicants"). Background The Will Elizabeth Henson died on 17 July 1987. She left a will dated 8 May 1986 (lithe Will"). The will is a relatively short document of four pages. Clause 6 empowers the Trustees to bring in the assets of the estate as a prelude to formal administration and ultimate distribution to those beneficially entitled. Clause 7 is of particular relevance to these proceedings. It states: II 7. I DIRECT my Trustees after payment of my just debts funeral and testamentary expenses and ai/ duties payable in respect of my estate including any duties payable on my death in respect of any gifts or settlements which I may have made in my lifetime to the exoneration of the donees' thereof TO HOLD the residue (hereinafter called "my residuary estate'? UPON TRUST and TO DIVIDE the same into six (6) equal parts and TO HOLD one (1) of such parts on trust for each of them my step-son ROBERT PANENUI HENSON my step-daughters NGAIRE PHYLLIS GRA TTON and PA TRICIA JOAN DOBBS my daughters KERETEWHA FLEMING and MAHIA WINDER and TO HOLD one (1) of such palts on trust for such of them my grandchildren ROBERT TAKAMAITERANGI HENSON. JESSICA ~
Minute Book:131 AOT 231 MA Y HENSON and TAUKIRI PETER DANIEL HENSON as shall survive me and attain the age of twenty one (21) years and if more than one in equal shares PROVIDED THA T if any of them my said step-son, step-daughters or daughters shall predecease me leaving a child or children who shall survive me and attain the age of twenty one (21) years such issue shall take and if more than one equally between them the share of and in my residuary estate to which his/her or their parent would have been entitled had he/she or they survived me and attained the age of twenty one (21) years." This residuary clause provides that the residue of the estate is to be shared equally between the natural, step and grandchildren of the Deceased named in that clause. As the Deceased's Maori land interests are not referred to explicitly anywhere else in the will, those interests necessarily fall within the ambit of this residuary clause. Administration of the Estate Probate was granted on 30 July 1987 in favour of James Havelock Henson and Keretewha Fleming as executors. On 26 August 1993 the Court then vested the Maori land 'interests of the Deceased in the executors, 6 ADWG 302. Since that time, James Henson has died leaving Mrs Fleming sole executrix. In 1993 Mrs Fleming flew back to New Zealand from Australia, and uplifted the estate files and funds held from the estate solicitors. The only step taken by Mrs Fleming since then was an unsuccessful attempt to have the Deceased's Maori land interests transferred to herself and her sister Mahia Winder. As that would have been contrary to the terms of the will, the application for succession by Mrs Fleming was, unsurprisingly, dismissed by His Honour Judge A D Spencer on 20 March 2001, 28 Auckland MB 249. Proceedings before the Maori Land Court The Enforcement Application was heard before His Honour Judge H B Marumaru on 6 April 2000, 99 Aotea MB 127-129, and was subsequently adjourned to Auckland to enable Mrs Fleming to give evidence. On 27 October 2000 the applications were heard before Judge Spencer, 28 Auckland MB 154-159. Mrs Fleming did not attend but was represented by her daughter. As a consequence of the hearing, Judge Spencer directed Mrs Fleming to provide accounts for the period of her executorship, following grant of probate on 30 July 1987. In addition, he directed that Mrs Fleming provide a report to the Court as to the application of funds and the remaining assets of the estate including the Maori land interests in contention. Mrs Fleming was to file such material by Friday 19 January 2001. This allowance of time was provided on account of Mrs Fleming's domicile in Australia. The application was then adjourned to enable Judge Marumaru to provide further directions or a decision. However, no decision issued from the Court. Regarding the Succession Application, neither Mrs Fleming or her natural sister Mahia Winder could attend the hearing set down for 30 July 2001 so the Court granted a further adjournment. Then on 3 September 2001 Judge Marumaru reserved his decision to examine matters of law in respect of the jurisdiction of the Court in the context of the present applications and the proper administration of the estate. Unfortunately, these proceedings were not finalised prior to the retirement of Judge Marumaru in 2001. In response to the direction of Judge Spencer for the filing of accounts of administration, on 18 January 2001, Mrs Fleming wrote to Judge Marumaru expressing her dismay at the actions of Mrs Gratton and Mrs Dobbs in attempting to
Minute Book:131 AOT 232 have the estate administered in accordance with the will. In addition, Mrs Fleming enclosed a statement of expenses. As at 11 January 2001 they amounted to $16,757.27 of which all but $1,913.62 was for legal costs to five firms of solicitors she appears to have instructed. No other details were provided by Mrs Fleming despite the orders of Judge Spencer that she account for her administration of the estate. For completeness, it should be noted that on 8 March 1999, Mrs Gratton made an application pursuant to s 165 of the Act to vest the Maori land interests of the Deceased to those entitled in terms of the will, A 19990006032. However, as such application could only be made by ((any person acting in a representative capacity" Judge Marumaru directed that the application could not proceed and so it was rejected. In any case, that application was filed pursuant to the Act rather than the previous legislation. Family Protection Act 1955 proceedings According to correspondence on the various Court files from the parties, Mrs Fleming, supported by her sister Mrs Winder, commenced proceedings under the Family Protection Act 1955. This fact is recorded in a letter dated 23 April 1993 from the then estate solicitors, Meredith Connell & Co. of Auckland, to Mrs Fleming with a copy to Mrs Gratton. Following the death of Mr Henson, one of the executors, Mrs Fleming asked the estate solicitors jf it was permissible for her to act as sole executrix. The solicitors answered in the affirmative but also noted that as Mrs Fleming would be in a conflict of interest as trustee for and claimant against the will, she would be unwise to continue as sole trustee. Apparently Mrs Fleming did not accept this advice and instead flew back to New Zealand, uplifted the estate files and funds held and then returned to Australia. According to subsequent correspondence from Meredith Connell dated 16 June 1993, funds in excess of $16,000.00 were paid over to either Mrs Fleming or her subsequent solicitors, Ross Holmes Law Partnership. Since that time, according to documents on the Court files, Mrs Fleming has utilised the services of at least three other firms of solicitors. However, it is also apparent from material before this Court that the Family Protection proceedings were never pursued to a conclusion. Submissions on behalf of the Applicants The stepchildren of the Deceased simply say that they are entitled to have the estate administered in accordance with the terms of the will. As foreshadowed, Clause 7 provides that the residuary estate of the Deceased, including by implication her Maori land interests, should be divided equally between the successors referred to in clause 7 of the will, namely the children, step-children and grandchildren of the deceased. Submissions on behalf of the Executrix and Mahia Winder Mrs Fleming and her sister Mrs Winder claim that the Deceased never intended anyone other than her natural children should inherit her Maori land interests. They say that their late mother intended to alter her will to make it clear that only her blood descendants should succeed. In addition, Mrs Fleming claims that clause 8 of the will provides her with the power to "appropriate and partition!) any of the Deceased's. real and personal property that may belong to any beneficiary in her absolute and sale discretion. See for example Mrs Fleming's letter to the Court received on 29 August 2001 and her subsequent correspondence of 11 July 2003. Put simply, Mrs ()
Minute Book:131 AOT 233 Fleming and her natural sister do not accept that anyone other than themselves and their late brother are entitled to succeed to'the Deceased's Maori land interests. Decision of 17 April 2003 The two applications were then heard before me at Levin on 19 November 2002. After hearing evidence from the Applicants and their supporters, the applications were adjourned to Chambers for further consideration, 122 Aotea MB 277-285. Then, on 17 April 2003 I issued a direction, 126 Aotea MB 272, where it was determined that s30(1 )(e) of the Maori Affairs Act 1953 was the relevant provision to advance the administration of this estate, given its particular characteristics. That section states: lito enforce the obligations of this trust (whether by way of injunction or otherwise) against any person appointed by the Court as the trustee of a person under disability, or against the executor, administrat00 or trustee of a deceased Maori, or against any other trustee in respect of any Maori freehold land [or General land owned by Maori] or any interest therein or the proceeds of the alienation thereof, or to administer any such trust; or to exercise in respect of any such trust or trustee any of the powers vested in the [High Court] by the [Trustee Act 1956]". As mentioned previously, under this section "the Court can order the executor to apply for a vesting order under s81 A of the Maori Affairs Amendment Act 1967." Therefore s30(1 )(e) provided the jurisdiction to enforce the obligations of the trust against the administrator. As a consequence Mrs Fleming was ordered to apply to the Court within 90 days from the date of the direction for succession to the estate of the Deceased on behalf of those entitled under the will. More importantly, I made it clear that any failure to comply with the order was likely to be treated seriously. Mrs Fleming was urged to act responsibly and do her duty to the testatrix, to the beneficiaries and to the Court. Recent events On 11 July 2003 Mrs Fleming wrote tome, in summary, making it clear that she does not intend to comply with the direction or order of the Court. She emphasised again that the land interests of her late mother were to be shared between herself and her natural sister Mrs Winder only, as those were their mother's wishes. In her letter, Mrs Fleming is critical of the Applicants and expresses in emphatic terms her opposition to their succeeding to the Maori land interests of the Deceased. At page 2 of her letter.she states: II/ still insist I have the /egal right to use clause 8 of my mothers will otherwise why was it included. I do not understand how the Te Ture Whenua Maori Act 1993 does not apply to my mothers will, the Court says it is covered by the Maori Affairs Act 1967, and yet you are now using a section of the Maori Affairs Act 1953 to attempt to intimidate me into signing to satisfy Ngaere Grattan. I make these comments without prejudice and trust that I eventually will be able to put this matter to rest knowing that my mother's wishes have been recognised and acknowledgement of the fact that my course of action has been to keep my promise to her not just a course of my own choosing as executor. }J
Minute Book:131 AOT 234 Discussion Relevant Law As a preliminary point, it should be noted that as administration of the estate was granted prior to the commencement of the 1993 legislation, it cannot apply, per s100(2)(a) of the Act. Instead, the Maori Affairs Act 1953 ("the 1953 Act") and the Maori Affairs Amendment Act 1967 ("the 1967 Act") are the relevant laws for the purpose of estate entitlement and administration. In addition, as mentioned, the Trustee Act 1956 provides the Court with the power to vest the Maori land interests of the Deceased in those entitled in terms of the trust created by the will. However, as the material events complained of occurred after the coming into force of the 1993 Act, s238 of that Act provides this Court with the jurisdiction to determine these applications. It ought to be remembered that the Trust over the land was created by the will and eventual probate granted in 1987. Failure to administer the estate Mrs Fleming claims that her mother intended that she and Mrs Winder succeed to-the Maori land interests and that the Deceased was intending to change her will to reflect this intention but did not manage to do so before her death. A review of the various application files reveals that Mrs Fleming has maintained that unwavering position from the beginning of these matters up until the present time. Despite the numerous Court proceedings and hearings, Mrs Fleming has steadfastly refused to deviate from the pathway she has set herself. However, regrettably for Mrs Fleming, it is a pathway that could only lead to her removal as executrix. This is because the fundamental duty of a trustee and executor of a will is to fulfill the terms of that will, regardless of their own personal views as to what the testatrix may or may not have intended. If, as she seems to, Mrs Fleming takes issue with her mother's previous solicitors and their drafting of the will, then that is a separate matter and avenues may be. available for her to pursue a remedy. However, it is obvious that she has not fulfilled her duties and continues to refuse to fulfill her obligations as a trustee and executrix. In doing so, she not only fails the testatrix, she continues to fail the beneficiaries who are entitled to have the estate properly administered and disposed of according to law. In addition, despite Judge Spencer's directions almost three years ago, Mrs Fleming has failed and/or refused to properly account for her administration of the estate to the Court and to the beneficiaries. Indeed, it would appear on the face of the evidence before the Court, that Mrs Fleming has eroded the assets of the estate by using the monies therein to initiate and defend litigation that in essence denies certain terms of the will that she and Mrs Winder do not agree with. While this is not an uncommon occurrence in similar circumstances, that too is arguably a dereliction of duty to say nothing of conflict. However, those are matters beyond the ambit of the present applications before this Court. Failure to take necessary steps of objection In any event, if Mrs Fleming objected to the terms of the will, she had ample' opportunity to take any necessary steps prior to the grant of probate including the renunciation of her role as executrix. She took no such steps. Following probate, she also had at least twelve months within which to make claims pursuant to the Law Reform (Testamentary Promises) Act 1949 and the Family Protection Act 1955. While proceedings were commenced, they were never pursued to any conclusion.
Minute Book:131 AOT 235 From having thus allowed probate to proceed without objection, Mrs Fleming is in effect estopped from now taking issue with the will unless a Court of competent jurisdiction says otherwise. It is now more than fifteen years since probate. Taking these circumstances into account, in my view Mrs Fleming has effectively waived any rights she may have had to successfully challenge the will. Decision The earlier direction was unequivocal. Mrs Fleming was to apply to the Court within 90 days for succession to the estate of the Deceased on behalf of those entitled under the will. From the evidence before me, Mrs Fleming has made it plain that she will not comply with my earlier order, where it was made perfectly clear that the consequences for Mrs Fleming may be serious. They could include her removal as a trustee and executrix to the estate and more seriously, her prosecution for contempt of Court. Such orders are rare and should not be made lightly. In the present circumstances, and considering that probate was granted over 15 years ago, these matters must come to an end. If Mrs Fleming fails and or refuses to fulfil her duties as trustee and executrix, then I consider that it is no longer appropriate that she remain in that office. However, rather than removing Mrs Fleming as executrix, I consider the most appropriate remedy is for the Court to simply vest the Deceased's Maori land interests in those entitled. That is what the will says should be done, and failing a contrary order from a Court of competent jurisdiction, that is precisely what this Court is bound by law to effect. Summary Having carefully considered all matters before the Court in respect of these two applications, pursuant to s37 of the Act, and in particular pursuant to s52 of the Trustee Act 1956 there are orders vesting the Maori land interests of the Deceased in those entitled under the will. Those orders will remain unsealed for a period of two months to allow Mrs Fleming or Mrs Winder the opportunity to attempt to challenge the will if that is their wish. If no steps are taken by either of them, then the orders from the Court will be sealed and issued. Dated at W~ this 3ott. day of ~ 2003 C M Wainwright JUDGE