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Hall v Radich-Chaytor [2020] NZHC 409 (5 March 2020)

Last Updated: 11 March 2020

JUDGMENT OF GRICE J

Contents

Background [1]

The will is not contested [11]

Application to adduce evidence [16]

Evidence [22]

Application [31]

Trustee corporations [36]

The will [37]

Selection of the executor/trustee [41]

Expediency [43]

The history [65]

Conclusion [99]

Probate and matters arising [101]

Costs [106]

GEORGINA MIRANDA MARY HALL v DOROTHY JUNE RADICH-CHAYTOR [2020] NZHC 409 [5 March 2020]

Background

[1] Mrs Radich-Chaytor married Mr Anthony Chaytor in April 2014. Mr Chaytor at that stage was aged 80 and Mrs Radich-Chaytor was 12 years younger. Mr Chaytor had never been married before. He died in 2018 leaving an estate valued at between
$15 million and $30–40 million. His widow, Mrs Radich-Chaytor and his niece, Ms Hall, are the parties to this proceeding. Now both seek the appointment of a corporate trustee to administer the estate and trusts. They cannot agree on which corporate trustee.

[2] Mr Chaytor had no children. His closest blood relatives were his seven nieces. His one nephew died in 2018. Mr Chaytor’s nieces, except for Sarah Frances Clervaux Chaytor, have supported Ms Hall in these proceedings.¹ Unfortunately, the relationship between Mrs Radich-Chaytor and Ms Hall became tense even before Mr Chaytor died on 23 September 2018 at age 84.

[3] Under the will of Mr Chaytor executed on 14 October 2016 Mrs Radich- Chaytor and Mr John Chantery-Harris were appointed executors and trustees. The will after personal bequests and granting a life interest in Mr Chaytor’s home residence to Mrs Radich-Chaytor directed the trustees to divide the residue of the Estate into 14 shares. These were to be held on trust as to seven shares for Mrs Radich-Chaytor if she survived Mr Chaytor; five shares to be divided among the nieces and nephews living at Mr Chaytor’s death and two shares for such charities as the trustees decided.

[4] Before Mr Chaytor died Ms Hall had filed proceedings in the District Court concerning his property. A mediation was held concerning those District Court proceedings which resulted in an agreement between Ms Hall and Ms Radich-Chaytor about how Mr Chaytor’s property would be divided on his death. That settlement would have varied the distribution set out in Mr Chaytor’s will which is now before this Court. That settlement is now the subject of a further dispute. A deed intended to record the terms of the settlement was never executed. The issue is now the subject of further proceedings brought against Mrs Radich-Chaytor and due for hearing in March 2020.

¹ My references to Ms Hall are to her as representative of those nieces supporting Ms Hall.

[5] However, it is the will dated 14 October 2016 which is the subject of this application for appointment of an executor/trustee. Needless to say, this litigation and the further proceedings concerning the settlement have exacerbated the tensions and mistrust between the parties.

[6] Before his April 2014 marriage Mr Chaytor had suffered a stroke. On 24 April 2014 the Family Court appointed temporary property managers for him under the Protection of Personal and Property Rights Act 1988 (PPPR).² These orders were discharged on 5 July 2014.

[7] These proceedings came before the Court as an application for grant of probate in solemn form. The parties now agree the only issue is who should be appointed executor and trustee of Mr Chaytor’s Estate. His will is not otherwise contested in these proceedings.

[8] The management of the estate and its administration is said to be complex and require experience in estate administration and farm management. It is likely to take several years if the value of the farm property is to be fully realised.

[9] Shortly before the hearing Mrs Radich-Chaytor reluctantly acknowledged that the administration of the Estate, in circumstances where there is little trust between her and the nieces, should be carried out by a professional independent executor/trustee.

[10] However, Mrs Radich-Chaytor is suspicious of the trustee nominated by Ms Hall, Perpetual Trust Limited (Perpetual Trust). Mrs Radich-Chaytor countered with a proposal that Trustees Executors Limited (TEL) be appointed as the sole executor and trustee of the Estate. That is opposed. This judgment is concerned solely with which of the two executors/trustees proposed should be appointed.

² Protection of Personal and Property Rights Act 1988, s 32.

The will is not contested

[11] The reason the initial application for probate in solemn form was brought by Ms Hall related to questions over the competence of Mr Chaytor when he executed his will. The parties have now agreed that a grant of probate of the will in its terms, apart from the replacement executor/trustee to be appointed in these proceedings, should follow. No other challenge is made in these proceedings to the terms of the will or its validity.

[12] The issue before me is the appointment of a replacement for the two named executors and trustees who do not wish to take appointment.

[13] The original will has not been produced, nor of course has there been any affidavit to lead grant of probate by the (yet to be appointed) executor/trustee therefore any application for grant will need to be made in due course by the appointed executor/trustee following this decision.

[14] While there is no dispute about the other provisions of the will the proceedings seeking to enforce a settlement between the parties could alter the distribution under the will. That, however, is a separate claim and does not affect the terms of the will nor the power of the Court to appoint a trustee and executor as sought in these proceedings. The only relevance here of the other proceedings is that the parties continue to be involved in adversarial litigation related to the estate and that it is possible the distribution may be varied.

Application to adduce evidence

[15] Mrs Radich-Chaytor has accepted that an independent executor and trustee should be appointed by the Court and she step aside from that role. She proposes that TEL be appointed. This was conveyed by letter to Ms Hall’s lawyer dated 25 October 2019.³

[16] Mrs Radich-Chaytor then sought leave to file an affidavit of Richard Douglas Bramley, a trust manager employed by TEL. This was opposed by Ms Hall on the

³ Four working days before these proceedings were set for hearing.

basis that the reason given by Mrs Radich-Chaytor that she would not agree to the appointment of Perpetual Trust was that she considered Perpetual Trust had an association with a lawyer from the firm acting for Ms Hall, Mr Peter Radich.

[17] Ms Hall said that Ms Radich-Chaytor’s objection to the appointment of Perpetual Trust was unprincipled and made on an unsound factual basis. Ms Hall submitted the association which existed between Mr Peter Radich and Perpetual Trust was minimal and certainly not sinister. It had involved only two inquiries by the lawyer of Mr Boyce who was a manager at Perpetual Trust. She said the allegation that Perpetual Trust was compromised was unfair and serious.

[18] Ms Radich for Ms Hall also said the short notice given to the plaintiff of her objection to Perpetual Trust and of the suggested appointment of TEL was unsatisfactory. In order to allow Ms Hall time to properly respond to the change in the direction of the proceedings the matter was adjourned part-heard for six weeks. In that time the parties filed further affidavits and written submissions.

[19] Mr Laurenson QC for Mrs Radich-Chaytor said there had never been any acceptance by Perpetual Trust that it was the appropriate executor/trustee to be appointed. He pointed out that Mrs Radich-Chaytor had not been a party to discussions which had occurred with the Perpetual Trust representatives. Mrs Radich- Chaytor was therefore concerned about what had occurred at the discussions in view of her knowledge of an association between Mr Peter Radich and Mr Boyce of Perpetual Trust.

[20] Mr Boyce had been approached by Mr Peter Radich about the possibility of taking an appointment first when Mr Chaytor was alive but the subject of a PPPR order and later in relation to the estate administration. Mr Radich and Mr Boyce had served as co-trustees on an unrelated estate or trust. It was during the conversation about that other trusteeship that the topic of whether Mr Boyce would be willing to take on the executor/trustee ship of this estate was raised.

[21] Mr Radich then referred Mr Boyce to Mr Naysmith, the lawyer who acted for Mr Chaytor during his life time, in order to discuss the Estate further. Mr Boyce made
that inquiry. He left matters on the basis that Perpetual Trust would be available to accept appointment if requested. Mr Boyce agreed to personally take responsibility as manager for the oversight of the administration of the estate.

Evidence

[22] At the first hearing I granted leave for the filing of an affidavit of Mr Bramley. Mr Bramley was to be the responsible officer if TEL was appointed. If the parties were nominating alternative corporate trustees in a situation where only one executor/trustee could be appointed, in my view it was important the Court had the relevant information before it in order to weigh up the alternatives.

[23] I also granted leave to Ms Hall to file an affidavit by Mr John McFertridge, the General Manager of Private Client Services at Perpetual Guardian in support of the appointment of its corporate trustee, Perpetual Trust.

[24] I concluded that it was in the interests of the proper administration of the Estate and of the beneficiaries to hear the evidence of both Mr Bramley and Mr McFertridge. Both these witnesses were cross-examined at the first hearing.

[25] Mrs Radich-Chaytor had raised her suspicions about the relationship between Mr Boyce and the plaintiff’s lawyer in her first affidavit. She filed a second affidavit before the resumption of the hearing, going into further detail. She lays out her concerns as follows:

(a) Mr Peter Radich was the lawyer used by the testator’s family for many years, including Ms Hall up until recently. Due to the association, Mrs Radich-Chaytor said she was concerned about “influence and lack of independence”.

(b) Mr Radich and his firm have acted for Ms Hall and family members in proceedings against Mr Chaytor when he was alive as well as against Mrs Radich-Chaytor in relation to the estate.
(c) Mr Radich approached Mr Boyce of Perpetual Trust in early 2018 (before the testator’s death) to see whether Perpetual Trust would act as a property manager in respect of Mr Chaytor’s property. In addition, Mr Radich again spoke to Mr Boyce of Perpetual Trust about the estate following Mr Chaytor’s death. They were co-trustees in a trust known as the D J Cummings Trust.

[26] I am of the view that the weight to be given to the concerns and distrust expressed by Mrs Radich-Chaytor toward Perpetual Trust is a matter for me to consider when determining who should be appointed.

[27] Further affidavits in support of the appointment of Perpetual Trust were filed. These were by Mr David Boyce, who would be the officer from Perpetual Trust who would undertake the day-to-day responsibility for the estate and Mr Benjamin Tothill, an independent lawyer with extensive experience in private client work in the rural sector and in trusts and estates. He had dealt with both of the proposed trustee corporations, TEL and Perpetual Trust. Both deponents were cross-examined.

Application

[28] Ms Hall had initially sought orders under s 6(2) of the Administration Act 1969 and s 51 of the Trustee Act 1956 appointing Perpetual Trust as the sole executor and trustee of the estate. Mrs Radich-Chaytor had opposed that application, initially maintaining it was appropriate that she, as the remaining named executor and trustee, of Mr Chaytor’s will dated 14 October 2016 take the appointment. Mr Chantery- Harris, the other named executor/trustee, had renounced the appointment. The present situation is that there are no executors/trustees willing to accept the appointment under the will. One executor/trustee has formally renounced and the other Mrs Radich- Chaytor has effectively renounced.

[29] Mrs Radich-Chaytor has apparently been managing the estate property since her husband’s death. Ms Hall says that the estate has not been well managed and that Mrs Radich-Chaytor has appropriated income from the estate to which she is not entitled. That is one reason that Ms Hall says she made the application for Mrs Radich-Chaytor to be replaced as executor/trustee.
[30] Ms Hall now bases her application for the appointment of Perpetual Trust on s 6(2) of the Administration Act 1969, and does not pursue the question under s 51 of the Trustee as it says it is no longer necessary.

[31] Section 6(2) of the Administration Act 1969 provides:

...

(2) Where by reason of the insolvency of the estate or other special circumstances the court thinks it necessary or expedient to do so, it may—

(a) grant administration to such person or persons as it thinks expedient notwithstanding that some other person is appointed an executor or that, apart from this subsection, some other person would by law be entitled to a grant of administration:

(b) grant probate to 1 or more of the executors appointed by a will, notwithstanding that some other person or persons may also be appointed as an executor or executors.

...

[32] The parties agree there are special circumstances making it necessary or expedient for the grant of administration to a person that the Court thinks expedient. The parties agree that the person should be a trustee corporation although do not agree which one.

[33] I accept that there are such special circumstances and that the appointment of a trustee corporation is expedient for the following reasons:

(a) Each of the executors and trustees appointed in the will have now renounced or indicated they will not take the appointment;

(b) The estate is of substantial value and requires professional management; and

(c) There is hostility and distrust between the parties who are beneficiaries of the will. They are adversaries in not only these proceedings but in other extant litigation due to be heard relating to Mr Chaytor’s assets and his will. In those proceedings Ms Hall is seeking to enforce the
terms of a settlement which Mrs Radich-Chaytor is said to have reneged on.

[34] The same reasons would have supported the appointment of a replacement trustee under s 51 of the Trustee Act 1956. That section provides:

51 Power of court to appoint new trustees

(1) The court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the court, make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.

...

(4) Nothing in this section shall give power to appoint an executor or administrator.

[35] While the roles of executor and trustee are distinct, it is usual for one person to discharge both functions. In this case it is common ground that a trustee corporation should be both executor and trustee.

Trustee corporations

[36] Only authorised trustee companies⁴ named in the Trustee Companies Act 1967 may obtain a grant of probate or administration. In general terms they can act in the same manner as a private individual trustee/executor. The differences are not material in these proceedings.⁵ Only four trustee corporations⁶ (in addition to the Māori Trustee which has special powers) are approved to operate as trustee corporations in New Zealand. These are: Public Trust (which also has additional rights and obligations); the New Zealand Guardian Trust; New Zealand Permanent Trustees Ltd (now owned by the Public Trust) Perpetual Trust and TEL.

4. The term “trustee corporation” is defined in s 2 of the Trustee Act 1956 and s 2 of the Administration Act 1969.
5. Earles Douglas Kelly Dobbies Probate and Administration Practice (6th ed, 2014, Lexis Nexis, Wellington) at [46.1.2]. For example, trustee corporations have the power to file an election to administer instead of obtaining a grant of probate or administration in small estates.

⁶ At [46.7] as at 2014.

The will

[37] The provisions of the will dated 14 October 2016 insofar as they are relevant are:

3.1 all my personal chattels as that term is defined in the Administration Act 1969 to my wife DOROTHY JUNE RADICH (“DOROTHY”) if she survives me but otherwise to my Trustees to either sell and add the proceeds to my estate or to distribute amongst friends and charities as they see fit. I express the desire, without creating any legal obligation, that Trustee decisions with respect to personal chattels should be in accordance with any expression of wishes that I express during my lifetime.

3.2 The sum of $5,000.00 to JOHN ANTHONY CHANTERY- HARRIS if he accepts office executor of trustee of this will.

4. I DIRECT my Trustees:

4.1 Interpretation: that in this paragraph:

“Home Interest” means my interest at my death in the Property;

“Outgoings” means the rates, insurance premiums, and other outgoings payable on the Property and includes all costs associated with the maintenance and repair of the Property;

“Property” means my principal place of residence which I live in at my death.

4.2 Home Interest: to hold my Home Interest on trust and to permit DOROTHY to use, occupy and enjoy it for as long as she chooses to live in it.

4.3 I DIRECT my Trustees be responsible for the payment of the outgoings.

4.4 Subject to the interest of DOROTHY my Home Interest will form part of the residue of my estate.

5 MY Trustees shall hold the rest of my estate ON TRUST to:

...

5.2.2 as to five such shares for such of my nieces and nephews living at my death equally;

5.2.3 as to the other two shares to divide the capital and income between such charitable organisations as my Trustees decide.
[38] As will be apparent Mrs Radich-Chaytor takes the personal chattels, a life interest in the home (with outgoings paid by the estate) and half (7/14) of the residue of the estate. Mr Chaytor’s nieces (including Ms Hall) take a 5/14 share and the other two shares (2/14) are to go to charitable organisations as determined by the Trustees.

[39] The Estate comprises:

(a) Extensive valuable farm lands;

(b) Chattels;

(c) Cash and investments;

(d) Income since the date of death;

(e) A residential property at Picton;

(f) A residential property at Girling Avenue, Blenheim; and

(g) A residential property at High Street, Blenheim.

[40] The estate is estimated to be in the vicinity of $15 to $30 million, depending how it is managed and valued. Ms Hall says the agreement reached with Mrs Radich- Chaytor at mediation resulted in an enforceable settlement for redistribution of the estate assets. This would result in Mrs Radich-Chaytor taking a part of the property to be subdivided as well as $5.5 million. However, under the will she is entitled to a life interest in the home (and outgoings) together with a half share of the estate which would on the values suggested be worth between $7.5 million and $15/20 million. It is not clear whether the shares of the estate to go to charity were affected.

Selection of the executor/trustee

[41] The parties both cited principles applying to appointments under s 6 of the Administration Act and s 51 of the Trustee Act as set out in St Clair v Wright.⁷ That

⁷ St Clair v Wright [2017] NZHC 494 at [17]–[19].

case involved the removal of the executor and trustee. Justice Clark summarised the principles as follows:⁸

[17] As can be seen there is a common theme of “expediency” in the “parallel provisions for removal” under the Administration Act and Trustee Act.

[18] The Court will be guided in the exercise of its jurisdiction by the following principles:

(a) The starting point is the Court’s duty to see estates properly administered and trusts properly executed.

(b) The wishes of the testator/settlor (evidenced by the appointment of a particular executor or trustee) are to be given considerable weight.

(c) The welfare of the beneficiaries is the “litmus” test.

(d) Hostility between administrators/trustees and beneficiaries is not by and of itself a reason for removal. Such hostility assumes relevance if and when it risks prejudicing the interests of the beneficiaries.

(e) The Court will consider the circumstances of the case in a macroscopic not microscopic fashion.

[42] As noted in that case the exercise by the Court of its jurisdiction to remove a trustee is guided by the underlying principles that the trusts be properly executed.⁹ The main concern is the welfare of the beneficiaries. To that end “a macroscopic rather than a microscopic view of the evidence is required”.¹⁰

Expediency

[43] Ms Hall indicated that she pursued her application under s 6(2) of the Administration Act 1969. This she submitted focused the arguments here on which of the trustee corporations satisfied the “expediency” test under that provision.

[44] The rules of statutory interpretation apply here. Interpretation commences with the text informed by the purpose and the context,¹¹ including the statutory scheme of the relevant legislation.¹²

⁸ At [17]–[18] (footnotes omitted).

⁹ At [15] citing Hunter v Hunter [1938] NZLR 520 at 529.

¹⁰ At [17]–[19].

11. Interpretation Act 1999, s 5. Commerce Commission v Fonterra Co-Operative Group Ltd [2007] NZSC 36 at [24].

¹² Westfield (NZ) Ltd v North Shore City Council [2005] NZSC 17 at [6].

[45] The Courts have not differentiated between the relevant considerations involved in the appointment of a replacement administrator as opposed to a replacement trustee.

[46] The word “expedient” is used in a similar provision to s 6(2) of the Administration Act, s 57 of the Trustee Act 1925 (UK). In commentary on the United Kingdom provision it was noted that the word “expedient” must “mean expedient for the trust as a whole”. It cannot mean that even if very expedient for one beneficiary but inexpedient from the point of view of the other beneficiaries concerned, the Court ought to sanction the proposal. I adopt that approach as a matter of common sense. “Expedient” means expedient for the trust and beneficiaries as a whole not just some of the beneficiaries.¹³

[47] Both counsel referred to the definition of “expedient” in R v Leitch [1998] 1 NZLR 420(a) at 428-429 where the Court said in relation to the interpretation of the provision in the Criminal Justice Act 1985: ¹⁴

“Expedient” is frequently used in statutes ... While there may be shades of meaning of the word, depending on the context, reference to standard dictionaries brings out its basic meaning ... Clearly, “expedient” as used in this section sets a lower threshold than “necessary, a conclusion reinforced by the consideration that the legislature often employs the alternative standards of “necessary or expedient” ...

[48] An ordinary dictionary meaning of “expedient” reads: ¹⁵

It means advantageous; advisable on practical rather than moral grounds. A second meaning is “suitable, appropriate. As a noun, a means of attaining an end; a resource.

[49] In my view, the Court must take into account a wide range of factors relating to suitability and appropriateness of a trustee or executor when considering who it “thinks expedient” to take the grant of administration.

¹³ Re Craven’s Estate, Lloyds Bank Limited v Cockburn (No. 2) (1937) CH 431 at 436 per Farwell J.

¹⁴ R v Leitch [1998] 1 NZLR 420 (CA) at 428-429.

15. Deverson and Kennedy (eds) New Zealand Oxford Dictionary (Oxford University Press, 2005, UK): Definition of “expedient”.

[50] The relevant range of factors includes both matters relating to the expertise and capability of the trustee corporation as well as its experience relevant to the particular property or issues involved in the particular case. In my view it also includes factors such as the views of the beneficiaries on the appropriateness or otherwise of the proposed administrator and the reasons for those views. This will be considered against the background leading to the Court application.

[51] There is no suggestion that either of the trustee corporations would in fact be hostile or partisan to either party to these proceedings. However, Mr Laurenson submits that a factor to be considered is that Mrs Radich-Chaytor is distrustful or suspicious of Mr Boyce and Perpetual Trust because of the previous dealings with a solicitor she perceives has acted against her and her late husband’s interests and is associated with the plaintiff.

[52] Mr Laurenson submits that distrust by one of the beneficiaries toward the executor/trustee might prove an impediment in the efficient administration of the Estate. He points to Crick v McIlraith in support of that proposition.¹⁶ The case involved an application to remove and replace an executor under s 21 of the Administration Act 1969. That provision allowed the Court to remove the administrator if “it becomes expedient” and “if it thinks fit” to appoint an administrator in their place.¹⁷

[53] In my view Mrs Radich-Chaytor’s perceptions of Mr Boyce and Perpetual Trust are a factor to be taken into account in appropriate circumstances in much the same way as the views of a beneficiary carried weight in Crick. While this application is made before a grant of administration or probate and s 21 (which was under consideration in Crick) applies only after the grant of probate, that of itself does not affect the relevance of Crick here.

[54] In Crick one of the administrators promoted by the plaintiff beneficiaries was a respected lawyer. However, another beneficiary objected to the lawyer’s

¹⁶ Crick v McIlraith [2012] NZHC 1290.

¹⁷ Administration Act 1969, s 21(1).

appointment because of the lawyer’s previous involvement in proceedings concerning the deceased. Associate Judge Osborne said:¹⁸

[62] The second candidate submitted by the plaintiffs is James Guest, an experienced practitioner well known to this Court. Regrettably, he would not in the particular circumstances constitute an appropriate alternative. This is not a reflection in any sense on Mr Guest’s qualifications or standing. Rather there is a particular history relating to his involvement in the Family Court proceeding concerning Mrs McIlraith’s capacity, out of which Donald McIlraith has developed reservations as to Mr Guest’s further involvement. It is unnecessary to examine that background in any detail. What must be avoided in the orders I make is any impact on the due administration of Mrs McIlraith’s estate which might come about through some new sense of grievance created by a particular replacement.

[55] Ms Hall says the distrust toward Perpetual Trust by the defendant is ill- founded. Therefore, she says Mrs Radich-Chaytor’s view either should be disregarded or little weight should be attached to it. Ms Radich for Ms Hall submits that without a proper factual foundation justifying the distrust, as a matter of principle it should be put to one side. She says that otherwise anyone could raise such an objection in an unprincipled way.

[56] Counsel for Ms Hall says the important factors in considering the appointment are:

(a) The skills of the trustee corporation as they apply to the particular circumstances of the estate; and

(b) The expertise and experience of the trustee corporation in relation to farming in Marlborough, which includes familiarity with water issues and planning schemes.

[57] In all those areas Ms Hall says Perpetual Trust has the advantage over TEL in relation to the administration of the estate. Therefore, she says, the appointment of Perpetual Trust is most expedient. Ms Radich for Ms Hall says, based on the experience and expertise of the Perpetual Trust officers, the differences between it and TEL are:

¹⁸ Crick v McIlraith, above n 16, at [62].

(a) Mr Boyce’s more extensive professional experience in the administration of rural properties and his existing connections in Nelson and Marlborough on account of his having established Perpetual Trust’s Nelson office;

(b) Mr Boyce’s membership of two international professional trustee associations; being his associate membership of the Executor and Trustee Institute of Australia and his membership of the Society of Trust and Estate Practitioners (a global organisation);

(c) The fact Perpetual Trust has already taken steps to familiarise itself with the assets in the estate by meeting Mr Chaytor’s solicitor and inspecting all of the property assets except the Picton rental. It had experience in Marlborough and with matters covering viticulture.

(d) Perpetual Trust’s proposal to take an active role in managing the estate assets relative to Mr Bramley’s proposal that the particularly challenging issues should be dealt with by consultants; and

(e) Mr Tothill’s view, as an expert, that delegation of significant responsibilities to a consultant is “not enough” with a complex rural property.

[58] On the other hand Mr Laurenson says that both trustee corporations are equally qualified to do the job. They are both in the top three of New Zealand trustee corporations according to Mr Tothill, who has had dealings with both. Beyond that, Mr Laurenson says while Perpetual Trust may be larger and have more staff as well as an office in Nelson, in relation to the administration of this Estate those factors are largely irrelevant to the actual administration of this estate.

[59] Mr Laurenson also says that even if Perpetual Trust as an entity had done more rural estate administration regarding family trusts that is irrelevant because what is important is the experience and the experience of the people taking responsibility for the administration of this Estate.
[60] Mr Laurenson submitted that it had been accepted by the Perpetual Trust officers who gave evidence, including Mr Boyce, that the administration would be undertaken by a small team, led by the responsible manager. They agreed it would not be appropriate to have a large number of people spread across the organisation dealing with the Estate although various in-house technical experts might be called upon if necessary. This would include for legal or accounting matters.

[61] Mr Tothill indicated that in an estate of this nature there may be a number of issues which arise requiring consideration by experts in the relevant field. Such issues could range from taxation to water issues.

[62] Mr McFetridge, the Auckland-based general manager of Perpetual Trust, said that it was important from his company’s point of view to “ensure that there was a relationship of trust” between the beneficiaries and the trustee corporation. He also agreed that if a beneficiary did not trust the corporate trustee then that may impede the ability of the corporate trustee to carry out its duties or at least make it harder. He agreed that it would be “very important” to try to avoid a situation where a beneficiary has for whatever reason, a distrust of the corporate trustee. He emphasised that Perpetual Trust would carry out its duties independently.

[63] Mr Boyce, who would be the manager responsible for administering the Estate at Perpetual Trust agreed that Mr McFetridge was an expert in this area and agreed with his comments.

[64] It was common ground that a large part of the administration of an Estate such as this, is knowing how to identify the issues that require the input of special expertise as well as knowing who to refer those issues to or how to locate the experts. He has a farming background and was not challenged on that. It appears the administrator may need to engage consultants on such matters as viticulture if the Estate land is to be developed. The relevant experts would need to be retained, whether it were Perpetual Trusts or TEL who was appointed.

The history

[65] The estate land involved known as Marshlands was part of a large tract of land acquired by the testator’s grandfather. The testator received his share of the family land as a result of a settlement intended to exclude him from the family company, Chaytor & Co. He also received an inheritance including two parcels of land from his father. Ms Hall indicated Mr Chaytor had neglected the properties during his lifetime. It appears that Mr Chaytor had “issues” as Ms Radich put it, with his family.

[66] There is a history of hostility between Mrs Radich-Chaytor and Ms Hall. Counsel for Ms Hall in her submissions says the expression “hostility” if taken to mean “active antagonism” overstates the attitude of Ms Hall and the niece beneficiaries. She suggests the better characterisation would be that “the family is seriously concerned” that Mrs Radich-Chaytor got herself into a position of considerable advantage in a short time, that her interests in relation to the administration of the Estate are not compatible with theirs and that the situation presents endless opportunity for conflicts of interest to arise (or there would have been had Mrs Radich-Chaytor been the executor/trustee). Nevertheless, Ms Hall agrees that there are tensions between those in Ms Hall’s camp and Mrs Radich-Chaytor. She says there has been and remains an undercurrent of suspicion both ways. There have been, she says unpleasant, anonymous messages sent to Ms Hall’s solicitor by someone associated with Mr Chaytor which illustrates the deep under currents.

[67] It is apparent from the tone of the affidavits that there remains considerable tension between the parties. Ms Hall refers to the “clandestine” nature of the marriage which took place at a registry office in Christchurch with none of Mr Chaytor’s friends or relatives present as well as the non-disclosure of the marriage. Ms Hall is critical of Mrs Radich-Chaytor’s management of the Estate and says she has taken income to which she is not entitled. The sense of suspicion and distrust runs both ways.

[68] Against that background Mrs Radich-Chaytor is uncomfortable with the appointment of Perpetual Trust as the trustee corporation to administer as the Trustee because of the association between Perpetual Trust with Ms Hall’s legal firm and the contact made by Mr Radich without Mrs Radich-Chaytor’s involvement.
[69] Whatever degree of suspicion and hostility exists between the parties it is likely to increase in view of the proceedings set to go to trial in March. Mrs Radich-Chaytor will be having regular contact with the trustee/executor, given her life interest in the home and present half share of the estate.

[70] There is little doubt that the hostility and tension (whatever the rights and wrongs between the parties are) is likely to have a bearing on the efficiency of the administration of the Estate. Mrs Radich-Chaytor has been managing Mr Chaytor’s property for some time now. Ms Hall says she has been doing it badly and that criticism has not been taken well by Mrs Radich-Chaytor. The comments relating to Mrs Radich-Chaytor’s late arrival on the scene and covert marriage to Mr Chaytor are unlikely to have not endeared Ms Hall to Mrs Radich-Chaytor.

[71] Mrs Radich-Chaytor will be living in the home for which the estate will pay the outgoings and running expenses. She is likely to want to have a reasonable say in the management of the assets and is entitled to do so by virtue of her present lions share of the Estate.

[72] While Ms Hall points to the fact that she is seeking to enforce a settlement which will diminish Mrs Radich-Chaytor’s entitlement to Mr Chaytor’s assets, I am not in a position to assess the strength of that claim. It is the provisions of the will which all parties agree is valid and of which probate will be granted, which are before me.

[73] The efficient administration of the estate will advantage not only Mrs Radich- Chaytor but all the beneficiaries. To do that professional and experienced managers will be needed to assist deliberations on how to get the best value out of the Estate property. That may involve securing water rights and perhaps dealing with planning and resource applications in order to convert the property to a viticultural use. The executor/trustee will need to operate the farm and to develop a plan for its best use.

[74] The other assets that will need management are cash and investments and three residential properties. Those assets do not pose any unusual challenges for an
administrator. Professional advice and managers will be retained to deal with the ongoing management of those assets.

[75] It is the farm property at Marshlands which incorporates over 476 acres, which will pose the greatest challenge for the administrator. Ms Hall says the property is a complex mix of land suitable for agriculture and includes wetlands and areas deserving of environmental protection as well as coastal margins. A viticultural development would apparently add the most value to the farmland. The development of that would depend on securing irrigation and water rights. Mr Chaytor did not secure such rights while alive. Assuming that can be achieved the value of land will be considerably enhanced. Ms Hall is dismissive of Mrs Radich-Chaytor’s efforts to negotiate water rights with another party.

[76] Ms Hall also expresses concern about the estate cottages on Marshlands which she says appear to be occupied by tenants. She says the cottages do not comply with tenancy law requirements and are neglected and run down. Ms Hall also expresses concerns about the other residential properties in the estate.

[77] The management of rental properties, bringing them up to standard and ongoing recovery of rents is not an unusually difficult or complicated job for any trustee corporation. A rental manager would likely be put in place to oversee the properties being brought up to standard and arrangements made to ensure compliance with tenancy lands and maintain rentals or otherwise sell them.

[78] I do not consider there is any material advantage that either trustee corporation has over the other in relation to the short-term management of those assets nor of the management of cash investments.

[79] The difference that Ms Hall says exists between Perpetual Trust and TEL is that Perpetual Trust has a better knowledge of Marlborough and has specific experience in administering farms and viticulture in the area.

[80] In my view an important factor in a consideration of expediency in this particular case is not so much the general experience of the corporate trustee but rather
the experience and qualifications of the team, in particular those of the responsible manager.

[81] Decisions about the future of Marshlands will need to be made. Neither trustee corporation is qualified to make those decisions without advice. They will do so with the input of the beneficiaries and of internal or external expert advisers. Both would each use local and specialist management and expertise where required.

[82] Both corporations have extensive administration and governance experience. There is not much between either of them in terms of the way they would approach the management and planning needed. Each would have the senior officer responsible for the estate based in Christchurch or at least the South Island. Each officer would visit Marlborough when required. Both have indicated they have access to and would employ professionals and experts when necessary. This would be necessary for the evaluation of the options available for the land and to undertake any work that was necessary to implement the option selected.

[83] While Perpetual trust has relevant experience in the area Mr Laurenson noted that Mr Bramley of TEL, had a rural background, had dealt with rural water matters (which will be an issue here) and was experienced in rural farming matters. The fact that he had not been involved in establishing a viticulture farm in Marlborough was beside the point said Mr Laurenson, as long as he had the expertise in administering trusts and estates and rural land matters and knew when to call in the technical experts. Mr Bramley confirmed that he had all the resources needed available to him. He was not challenged on that issue.

[84] I consider that the fact that TEL has not dealt with the conversion of land to viticulture is a factor but in a case such as this the necessary expertise will be contracted by the administrator. I am satisfied that TEL has the general experience as well as knowledge of the rural sector necessary.

[85] While Perpetual Trust may be larger in size and have an office in Nelson, those factors are not directly relevant to the job of administering this Estate. It is clear that
whoever is the responsible manager they will need to visit the properties regularly and meet with the beneficiaries. They will need to travel to Marlborough for that purpose.

[86] Ms Hall and her family are as eager to assist in the administration as is Mrs Radich-Chaytor. Both trustee corporations are experienced in managing the input of competing and adversal beneficiaries. The responsible manager will need to get to grips with that management speedily. It is further complicated by the imminent hearing in relation to the settlement agreement.

[87] In my view either of the trustee corporations could do the required work competently. Each is able to competently attend to the governance and high level management of the Estate and ensure that the appropriate expertise and management is applied locally. There was a suggestion that having greater internal resource might mean that the specialist advice might be less costly. I do not consider it is possible to make such an assessment. Each of the corporations have internal expertise and they both charge on an hourly rate basis for managerial and support staff time as well as internal resource. They will each want to obtain the best advice available in the circumstances. It would be impossible for the Court now to make an assessment of how that might be best achieved. It will depend on the circumstances and what is to be done with the Estate.

[88] I also note that both corporations have dispute resolution processes in place and have arrangements with an independent organisation to deal with specific disputes. They each have internal complaints procedures if the beneficiaries wish to take up any issues.

[89] The factor which I conclude weighs against Perpetual Trust being appointed has come about due to no fault on its part. That is the suspicion and distrust with which Mrs Radich-Chaytor regards it. While Ms Hall says the suspicions are baseless, Mrs Radich-Chaytor has pointed to why she has concerns. While it may seem trivial to Ms Hall and certainly does not indicate any fault on the solicitor or the trustee corporation officer, nevertheless the concerns are real for Mrs Radich-Chaytor and based on events that did occur. It is common ground that there was nothing improper in Mr Radich’s approach to Perpetual Trust. Her view while not understandable is not
totally irrational in the circumstances. She holds it against a background of distrust between the parties and Ms Hall’s expressed concerns about Mrs Radich-Chaytor’s relationship with the testator and her motives.

[90] From Mrs Radich-Chaytor’s point of view serious and disparaging allegations have been made against her. Allegations of incompetence have also been made in connection with the way she has handled Mr Chaytor’s affairs and that she has wrongfully taken income. Whether those are right or wrong it has generated hostility. Her views must be considered against that background.

[91] In addition, Mr Chaytor clearly set some store on his relationship with Mrs Radich-Chaytor. There have been allegations that he was incompetent in terms of managing his affairs and that Mrs Radich-Chaytor unduly influenced him. However, these have not been proven nor were they the subject of inquiry in these proceedings. The medical evidence produced directed at his competence it was submitted suggested undue influence in relation to the will. However, that evidence has not been tested nor does it shed any light on Mr Chaytor’s relationship with Mrs Radich-Chaytor. In my view, to the extent they can be ascertained, his wishes have some relevance. He appointed Mrs Radich-Chaytor, together with another, as executor and trustee of his estate. He wanted her to have a substantial share of the Estate and a life interest in the home. He wanted her looked after. He also apparently wanted her as trustee to have a say in who the charities should be who presently benefit under the will. That suggests he would want her views taken into account as to who should be appointed executor/trustee in her place. While I do not need to consider Mrs Radich-Chaytor’s position as an executor/trustee, being the person the testator did appoint, nevertheless if she has a preference for which trust corporation should be appointed, I anticipate that the testator would have wished Mrs Radich-Chaytor to have a reasonable say in who was appointed.

[92] In my view, considerations in my assessment of who it is expedient to appoint in this case must involve both relevant experience and expertise, consideration of who will be actually undertaking the administration and the issues that are likely to arise in the estate. In addition of relevance is the views of the beneficiaries, why they have those preferences and how it may affect the efficient administration of the estate. In
this case I consider that it is important for the trustee corporation and the manager appointed to have a constructive relationship with all beneficiaries.

[93] My conclusion is that either trustee corporation could carry out the administration of this estate competently and professionally. Each would need to appoint an appropriate team to work with the manager who is delegated the authority to make the day-to-day administration decisions. Either would have access to resources necessary to administer this estate. Specialist advice will be required in relation to decisions about the future of Estate assets and the manner in which the best value will be obtained for the benefit of all beneficiaries. Both corporations are equally well placed to identify and retain the appropriate advisers.

[94] The determinative factor in this case is that one of the beneficiaries, at present the largest beneficiary, has expressed strong views against the appointment of Perpetual Trust. She has pointed to reasons, which Mr Laurenson was quick to say do not cast any aspersions on the conduct of those involved, particularly related to Mr Peter Radich. There is no allegation of any sinister conduct in fact. However, what has occurred in the past and the present tensions between the parties causes Mrs Radich-Chaytor to have apprehensions about Perpetual Trust. That is not a good way to start. That was properly acknowledged by the representatives of Perpetual Trust.

[95] Weighing against the edge that Perpetual Trust might have had in terms of size or a Nelson presence (neither of which I do not consider has great weight here), is the suspicion and distrust with which Mrs Radich-Chaytor views that trustee corporation.

[96] It is not disputed that Mr Peter Radich did have an association with Mr Boyce as a co-trustee and that he contacted Perpetual Trust to discuss administering the property both during the lifetime of Mr Chaytor and after his death. Mr Radich is or was a member of the firm representing Ms Hall who in Mrs Radich-Chaytor’s view was acting as an adversary against her and her late husband. While the relationship and communications between Mr Radich and Mr Boyce were above board and would not amount to a conflict in the legal sense, nevertheless from Mrs Radich-Chaytor’s point of view it makes her distrustful of Perpetual Trust. Ms Radich-Chaytor is the
beneficiary who takes the largest share of the estate, she has a life interest in the home and was one of the appointed trustees or executors under the will.

[97] If distrust, suspicion and conflict can be avoided in the administration of this Estate it should be. I am of the view that the distrust and suspicion Mrs Radich- Chaytor has expressed against Perpetual Trust together with the other circumstances to which I have referred weigh against Perpetual Trust being appointed as the administrator/executor. Mrs Radich-Chaytor is supportive of the appointment of TEL. Evidence confirms it is competent professional and capable of doing the administration and is a trustee corporation approved under the Trustee Corporations Act. No one has expressed distrust of it or its independence.

[98] I am therefore satisfied that it is expedient to appoint TEL as sole administrator/executor in the administration of the estate of Mr Chaytor.

Conclusion

[99] Accordingly, following the renouncing of probate by the executors named in the will I appoint Trustee Executors Ltd as sole administrator/executor of the will of Mr Anthony Chaytor dated 14 October 2016. Out of an abundance of caution I also order the named executors in the will be removed.

[100] Orders are made accordingly.

Probate and matters arising

[101] Following my invitation counsel on 4 February 2020 submitted a joint memorandum on procedural steps covering how best to effect the grant of probate. The parties supported an immediate grant of probate in solemn form to the appointed trustee corporation.

[102] However, I do not consider this appropriate as the relevant steps including the filing of the original will and the affidavit to lead grant of probate have not been completed. TEL will need to make the application for grant of probate.
[103] A further issue I raised was whether it might be appropriate for the Court to review the matter in 12 months. The plaintiff is of the view this is not necessary nor is there jurisdiction for it and its purpose would be uncertain. The defendant agrees with a review.

[104] Having considered the position I consider a review is not necessary. As the plaintiff has submitted its purpose would be uncertain. TEL is a trust corporation with wide experience in the administration of trusts and estates. I can see no useful purpose in a review of its estate administration in 12 months. In addition, there have been delays in getting the estate administered pending the outcome of litigation. It is not appropriate to put in place a review which may take attention away from the administration and further delay matters. I make no finding on whether there is the jurisdiction to order a review as it is not necessary in the circumstances.

[105] In the event of any matters arising relating to this judgment leave is granted to either party to file a memorandum covering the issue. It would be preferable if this was a joint memorandum however failing that any response should be filed on or before three days from the filing of the first memorandum.

Costs

[106] Counsel have suggested that costs be awarded on a 2B basis and be paid by the estate. That appears the appropriate and usual course in matters such as this. However, if there is to be any variation to that arrangement or counsel wish to make any further applications in relation to costs, the application should be made within seven days of the date of this judgment together with submissions in support of the application. Any response should be made within a further seven days and any reply within a further three days. Failing that I direct that the costs of both parties be paid by the estate on a 2B basis.




Grice J

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