Bartlett v Gillespie - [2023] NZHC 42

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-02

[2023] NZHC 42

BETWEEN
MEGAN LISA BARTLETT AND DAVID JOSEPH EHLERS AS PRESUMPTIVE
EXECUTORS AND TRUSTEES IN THE ESTATE OF KAY ANNETTE BANNING

Applicants

AND

WILLIAM PETER GILLESPIE

First Respondent

JOANNE HELEN BROOKS
Second Respondent

BERYL MAY BANNING

Third Respondent

Hearing: (Determined with on the papers)

Counsel:

K J Jarvis for Applicants

J G O’Neill for First Respondent

R M Lewis for Second Respondent M J Badham for Third Respondent

Judgment:

31 January 2023

JUDGMENT OF EATON J

[1] The applicants seek an order appointing Clare Frances Marie Toomey as temporary administrator of the Estate of Kay Annette Banning (Ms Banning). The deceased died at Dunedin on 15 May 2022.

[2] The applicants are two of the four partners, as at the date of Ms Banning’s death, in the firm of Webb Farry, Barristers and Solicitors, Dunedin.

BARTLETT v GILLESPIE [2023] NZHC 42 [31 January 2023]

[3] Ms Banning left a document dated 15 May 2022 which the applicants believe to be Ms Banning’s last will (the will). That will appoints two of the partners of Webb Farry as at the date of her death as the executors.

[4] On 30 May 2022, the second respondent lodged a caveat against grant of administration of Ms Banning’s estate, raising an issue as to the validity of the will. The second respondent alleges Ms Banning did not have testamentary capacity as at the date the will was made. The second respondent requested, and the applicants, and the first and third respondents, have agreed that the applicants make an application for probate in solemn form.

[5] Pending the defended probate application, the parties have agreed that it is necessary for a temporary administrator to be appointed to preserve and manage the assets of the estate.

[6]Section 7 of the Administration Act 1969 provides:

7 Administration pending legal proceedings

(1)Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant of administration, are pending, the court may grant administration of the estate of the deceased to a temporary administrator, who shall, until he or she is discharged or removed under section 21, have all the rights and powers of a general administrator, other than the right of distributing the balance of the estate remaining after payment of debts, funeral and testamentary expenses, duties, and fees, and every such temporary administrator shall be subject to the immediate control of the court and act under its direction.

(2)The court may, out of the estate of the deceased, grant to a temporary administrator appointed under this section such reasonable remuneration as the court thinks fit.

[7] The relevant criteria in considering a s 7 application is that there be a legal proceeding touching the validity of the will; that it be necessary to grant an order for interim administration to preserve and manage the assets of the estate…

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 Bartlett v Gillespie

Details

AGLC: Bartlett v Gillespie [2023] NZHC 42
Case: [2023] NZHC 42
Decision Date: 31 January 2023

CaseChat Overview and Summary

In the case of Bartlett v Gillespie, the applicants, who are partners in the firm of Webb Farry, Barristers and Solicitors, sought the appointment of Clare Frances Marie Toomey as a temporary administrator for the estate of Kay Annette Banning. Ms Banning had passed away on 15 May 2022, and the applicants believed that a document dated on the same day was her last will, which appointed them as executors. However, on 30 May 2022, the second respondent lodged a caveat against the grant of administration, alleging that Ms Banning lacked testamentary capacity at the time the will was made. The applicants, along with the first and third respondents, agreed that a probate application should be made in solemn form. A temporary administrator was deemed necessary to preserve and manage the estate pending the resolution of the probate proceedings.

The legal issue before the court was whether it was appropriate to appoint a temporary administrator to manage the estate of Ms Banning. Under Section 7 of the Administration Act 1969, the court has the authority to appoint a temporary administrator when there are legal proceedings concerning the validity of a will or the grant of administration. The court must consider if the appointment is necessary to preserve and manage the estate, and if the proposed appointee is qualified for the role. The applicants argued that a temporary administrator was required to protect Ms Banning's assets, as the caveat had prevented them from securing her property, determining the extent of her assets, and paying her creditors. They also presented evidence that Ms Toomey, the proposed temporary administrator, had the necessary expertise in estate administration.

The court accepted the applicants' argument that a temporary administrator was necessary to manage Ms Banning's estate. The evidence presented showed that the caveat had hindered the applicants' ability to secure and protect the estate's assets, and that Ms Banning had creditors awaiting payment. The court found that Ms Toomey was suitably qualified for the role, as she had provided evidence of her expertise in estate administration. Furthermore, all interested parties had agreed to her appointment. The court granted the applicants' request for the appointment of Ms Toomey as a temporary administrator, subject to the terms outlined in the draft order filed on 23 December 2022.

Orders