Beattie v Hopgood - [2019] NZHC 3276

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2019-425-000105

[2019] NZHC 3276

IN THE MATTER of the Estate of Philip Henry Koch

AND

IN THE MATTER

of Section 21 of the Administration Act 1969

BETWEEN

JOSEPH GEORGE BEATTIE

Applicant

AND

OWEN WILLIAM HOPGOOD

Respondent

Hearing: Determined on the Papers

Counsel:

G L Wilkin for Applicant

Judgment:

12 December 2019

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 12 December 2019 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Solicitors:
AWS Legal, Invercargill cc:
Michael Nidd, Farry & Co, Dunedin Mr E A Hopgood, Wanaka
Mr C W Hopgood, Dunedin

BEATTIE v HOPGOOD [2019] NZHC 3276 [12 December 2019]

Introduction

[1]Joseph George Beattie (Joseph) seeks orders:

(a)that this proceeding be commenced by way of originating application;

(b)dispensing with service on any other party;

(c)that Owen William Hopgood (Owen) be discharged as an administrator of the estate of Philip Henry Koch (Philip).

[2] I have previously made directions joining Owen as a respondent and requiring service upon Mr Michael Nid, a Dunedin solicitor, who I understand is authorised to accept service on behalf of Owen’s welfare and property managers. I also required an up-to-date medical certificate concerning Owen’s capacity. I have now received confirmation that Mr Nid was served with the proceedings and the medical certificate.

Background

[3] Philip died on 27 November 2014. Probate of his last will was granted to Owen and Joseph on 19 March 2015.

[4] Philip was married to Blanche Koch (Blanche), who survived him. Philip’s will appointed Owen and Joseph as executors and trustees. They are both Philip’s nephews. Under the will, Philip’s estate was divided into two equal parts, with one- half for Blanche and the other half for Owen and Joseph as tenants in common in equal shares.

[5] Blanche died on 9 March 2019 and Probate of her last will was granted on 9 March 2019. Whilst her will appointed Owen and Joseph as executors and trustees, for reasons relating to Owen’s capacity Joseph was appointed sole executor.

[6] This takes me to the reason for this application. Owen has had a series of strokes and intracerebral haemorrhages and is no longer competent to make decisions regarding his personal care, welfare and property. Both a welfare guardian and

property manager have been appointed to look after his affairs. Mr Nid has accepted service of the proceedings on their behalf and they can be taken to be aware of them.

[7] There is before the court a certificate dated 25 October 2018 of a Dr Wendy Busby, a Consultant Physician and Geriatrician of the Southern District Health Board, confirming that Owen is unable to competently make decisions due to recurrent strokes and intracerebral haemorrhages and that his impairment is likely to continue.

[8] There is a more recent certificate of a Dr Burlow, dated 12 November 2019, which states that Owen has been a patient since October…

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 Beattie v Hopgood

Details

AGLC: Beattie v Hopgood [2019] NZHC 3276
Case: [2019] NZHC 3276
Decision Date: 12 December 2019

CaseChat Overview and Summary

Joseph George Beattie sought to discharge Owen William Hopgood from his role as an administrator of the estate of Philip Henry Koch, due to Owen's incapacity as a result of strokes and intracerebral haemorrhages. The court was required to decide whether it was appropriate to discharge Owen as an administrator, considering his inability to make decisions regarding his personal care, welfare, and property, and whether a new administrator should be appointed in his place.

The court considered the nature of the application, the requirement for a litigation guardian, and the provisions of the Administration Act 1969. It was determined that the application was suitable to be commenced by way of an originating application, and that no litigation guardian was necessary given the incapacitated status of Owen and the nature of the matter at hand. The court also found that service upon Owen was not necessary, as his welfare and property guardians had been served and voiced no objection to the application.

The court found that Owen's incapacity and inability to act as an administrator or executor was a suitable, practical, and efficient reason to discharge him from his role. Given that the estate was ready for distribution, the court decided not to appoint a replacement administrator at that stage. The court concluded that it was appropriate to discharge Owen as an executor and administrator in the estate of Philip Henry Koch.

In conclusion, the court made orders that the application be dealt with as an originating application, service of the application would be dispensed with, the appointment of a litigation guardian for Owen William Hopgood would be dispensed with, and Owen William Hopgood would be discharged as an executor and administrator in the estate of Philip Henry Koch. No order for costs was sought or made.

Orders