Resthome fee fight up a notch

Justice Paul Heath's order to remove Christian John Gillibrand as executor followed the rest home seeking to recover $51,759 owed for the care of his father. Photo / Thinkstock

The High Court has removed a Dargaville man as executor of his father's will in a legal battle over unpaid residential care fees.

Whangarei lawyer Stuart Henderson has been appointed executor of the estate of the late Gordon John Gillibrand who died in the Kauri Coast Rest Home and Hospital in Dargaville in April 2011.

Justice Paul Heath's order to remove Christian John Gillibrand as executor followed the rest home seeking to recover $51,759 owed for the care of his father from May 2003 until his death.

Bupa Care Services that runs the rest home applied to have Christian Gillibrand removed as executor of the Gillibrand Family Trust on the grounds of conflict of interest and hostility.

In December 2003, Gordon Gillibrand sold his farm property in Dargaville to trustees of the Gillibrand Family Trust - Christian Gillibrand, Mary Gillibrand and John Parker - for $505,000.

Christian Gillibrand repaid $105,000 before his father's death and says the deceased forgave the balance. He refuses to pay the bill, claiming the rest home caused his father to die in inhumane and distressing circumstances and Bupa forfeited the right to payment because of their wrongdoing.

He also says the trust has no money to settle the debt which was his father's, not his.

Bupa argued in court that Christian Gillibrand had a conflict between his personal interests to resist payment and his duties as an executor to pay valid debts owed to third parties.

It said the nature of the allegations about the treatment of his father were scandalous and reinforced hostility towards Bupa and his inability to act as an executor in a neutral manner.

Andrew Holgate, representing Mr Gillibrand, argued that the hostility did not justify the removal of his client as the executor.

Justice Heath said Bupa had made a case for removal to ensure the estate was properly administered. Emotional or financial considerations, he said, should not cloud decision making.

He said Mr Gillibrand's ability to bring an independent mind on whether the debt was valid was questionable, to say the least.

"In any event, even if the Bupa claim were permitted to proceed to trial, with Mr Gillibrand defending it on behalf of the estate, a successful claim would undoubtedly require Mr Gillibrand to retire as personal representative, given that he would need to sue himself to recover any debt owed by the trust," Justice Heath said.

A date for Bupa's claim has yet to be fixed.