Man refuses to leave property parents passed down, which siblings sought to sell
New Zealand’s Court of Appeal declined to stay the enforcement of a possession order requiring a man to remove his personal items from the principal asset of his parents’ estates, vacate the property, and deliver it to his sister for its sale.
In Easthope v Ale [2026] NZCA 83, a married couple had four children, then separated amicably without arrangements for a formal relationship property division or marriage dissolution.
The father died in November 2000. His will equally divided the estate between his wife and their third child. The principal estate asset was a property at Mount Eden, Auckland. In 2001 or 2002, the second child started living in the property with his mother.
In June 2003, pursuant to the mother’s claim under the Family Protection Act 1955 (FPA), the Family Court granted her a life interest in the estate’s half-interest in the property. She continued residing there until her death in August 2021.
The mother’s will, made in February 2004, left two minor bequests to two other individuals, then divided her remaining estate equally among the eldest child, the second child, and the youngest child.
Thus, for the Mount Eden property, the third child had a half-share pursuant to the father’s will, while the three other children each had a one‑sixth share under the mother’s will.
The eldest child, as executor of the father’s estate, and the youngest child, as executor of the mother’s estate, entered a deed of family arrangement to sell the property.
Of the net sale proceeds after the payment of debts, half would go to the third child as sole beneficiary of the father’s estate, and half would go to the mother’s estate for distribution under her will.
In April 2024, the eldest child arranged a notice for the second child, who continued occupying the property, to vacate it for sale.
Refusing to do so, the second child filed an FPA application against the mother’s estate. He alleged that she had agreed to transfer the property to him at nominal value.
The eldest child, supported by the youngest child, applied for summary judgment for vacant possession. In October 2025, Associate Judge Gellert rejected the second child’s defences and issued the possession order.
The second child appealed the judgment and applied to stay its enforcement pending the appeal’s determination. In February 2026, Judge Venning of the High Court declined the stay application.
Before the Court of Appeal, the second child again applied for a stay. He argued that refusing a stay would render his appeal rights nugatory and that enforcing the possession order would lead to the sale of the property.
Declining the stay, the Court of Appeal of New Zealand saw no outcome that would avoid the property sale.
The appeal court pointed out that the second child could not claim full ownership of the property and did not suggest that he was willing or able to buy out the other beneficiaries’ interests.
The appeal court considered the effect on third parties a significant factor because the second child’s actions, including his unlawful occupation of the property, impacted the beneficiaries of both estates, which were incurring costs and reducing the net benefits.
Regarding the appeal’s apparent strength, the appeal court saw low prospects of success and no novelty or public interest. The appeal court ruled that the overall balance of convenience weighed against the second child.
Given the estates’ beneficiaries and the wills’ terms, the appeal court saw no realistic prospect that the second child could attain a better outcome than the executors’ current undertaking to hold half of the net sale proceeds in trust, pending the resolution of his claim against the mother’s estate.
Regarding the second child’s potential FPA claim against his father’s estate, the appeal court noted that the claim would face difficulties due to late filing and his prior statement that he had no plans of making such a claim.
