Baker v Storm - [2018] NZHC 742

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-485-600824

[2018] NZHC 742

IN THE ESTATE OF
ALLAN ROY BAKER,

of Auckland, retired, deceased

BETWEEN

LEE ANN STORM

Applicant

Hearing: On the papers

Counsel:

B R B Abraham for Applicant

Judgment:

20 April 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 20 April 2018 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Denham Bramwell, Manukau

LEE ANN STORM [2018] NZHC 742 [20 April 2018]

[1] I have before me an application by Lee-Ann Storm, the daughter of Allan Roy Baker, seeking the grant of letters of administration in relation to his estate. Allan died intestate. An issue has arisen as to whether Mr Baker’s surviving spouse, Eileen Baker, enjoys priority for the purposes of the grant of administration, or whether she has lost priority because she and Allan separated in 2003. They signed a separation agreement which records the following:

7.3The provisions of this agreement are in full and final settlement of all questions concerning all of the joint or separate property owned by Eileen or Allan or both of them and neither of them shall have any claim against the other in relation to such property whether under the Property (Relationships) Act 1976 or under any other statute or at common law.

7.4This agreement shall be binding on the parties in all circumstances including bankruptcy, the taking of property and execution by creditors, separation, whether on one or more occasions, reconciliation, marriage, or death of one or both parties.

[2] Priority on intestacy is subject to r 27.35 of the High Court Rules 2016. It states:

27.35 Order of priority for grant in case of intestacy

(1)If a person has died wholly intestate, the right to apply for letters of administration of that person's estate is determined in accordance with the order of priority set out in subclause (3).

(2) Subclause (1) is subject to section 6 of the Administration Act 1969.

(3)The order referred to in subclause (1) is as follows:

(a)the first in priority is persons having a beneficial interest in the estate, according to the order of priority set out in subclause (4):

…

(4)Persons having a beneficial interest in the estate are entitled to a grant of administration in the following order of priority:

(a) the surviving spouse or civil union partner or de facto partner entitled to succeed on the intestacy, if paragraph (b) does not apply and his or her beneficial interest in the estate is not affected, —

(i)in the case of a surviving spouse, by section 12(2) of the Matrimonial Proceedings Act 1963 (as applied by section 191(3) of the Family Proceedings Act 1980); or

(ii)in the case of a surviving spouse or a surviving civil union partner, by section 26(1) of the Family Proceedings Act 1980; or

(iii)in the case of a surviving de facto partner,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baker v Storm

Details

AGLC: Baker v Storm [2018] NZHC 742
Case: [2018] NZHC 742
Decision Date: 20 April 2018

CaseChat Overview and Summary

The High Court of New Zealand considered an application by Lee-Ann Storm, the daughter of Allan Roy Baker, seeking the grant of letters of administration in relation to her father's estate. Allan had died intestate, and an issue arose as to whether Eileen Baker, Allan's surviving spouse, had priority for the grant of administration or whether she had lost her priority because she and Allan had separated in 2003. The separation agreement between the parties included a clause stating that the agreement was in full and final settlement of all questions concerning all joint or separate property and that neither party would have any claim against the other in relation to such property. The court was required to determine whether the separation agreement, and the fact that Eileen had not expressed an interest in the administration of the estate, affected her priority for the grant of administration.

The court held that Eileen continued to enjoy a beneficial interest in the estate for the purpose of administration of the estate. The court noted that the High Court Rules and the Administration Act presume that surviving spouses will have priority subject to specified exceptions, one of which is where a formal separation order has been made by the Family Court. However, the court also noted that a general discretion to grant letters of administration on a different basis is preserved by rule 27.35(2) and section 6 of the Administration Act. The court concluded that it was both necessary and expedient to grant the letters of administration to Lee-Ann because the estate was modest, Eileen had expressed no interest in the administration of the estate, Lee-Ann had a clear and legitimate interest in the estate, and Lee-Ann had otherwise satisfied the formalities for the grant of administration.

The court granted an order granting letters of administration to Lee-Ann. The court noted that the grant of administration did not absolve Lee-Ann of her duty to secure distribution in accordance with section 77 of the Administration Act, which continues to afford some priority to Eileen in terms of distribution.

Orders