Bell v Patterson

[2017] NZHC 1092

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2017-470-44 [2017] NZHC 1092

IN THE MATTER

of the Property (Relationships) Act 1976

BETWEEN

BEVERLEY AGNES BELL AS EXECUTOR OF THE ESTATE OF EILEEN MINNA HAINE

Applicant

AND

JOHN DOUGLAS PATTERSON AS EXECUTOR AND ADMINISTRATOR OF THE ESTATE OF ROBERT REGINALD HAINE

Respondent

Hearing:	24 May 2017
Counsel:	S T Scott for Applicant
Judgment:	24 May 2017

JUDGMENT OF BREWER J

Solicitors:

Chris Rejthar & Associates (Tauranga) for Applicant

Holland Beckett (Tauranga) for Respondent

BELL v PATTERSON [2017] NZHC 1092 [24 May 2017]

Introduction

[1]      Mr Haine and Mrs Haine were married from 1943 until 1987 when Mr Haine died.   He left a modest estate.  The probate that was granted put Mr Haine’s total assets at $275,942.21.  Almost half of the estate was constituted by the family home situated at 10 Rita Street, Mount Maunganui.  The Government Valuation is given in the probate as $136,000.

[2]      Mr Haine’s Will left Mrs Haine only his personal chattels.  For the balance of his estate, Mrs Haine had only a life interest.  This included the family home because he was the sole registered proprietor.

[3]      Mr Haine stipulated in his Will that after Mrs Haine died, his residuary estate would be divided into two equal parts.  One part would go to his children per stirpes and the other half to such charitable purposes as his trustees might choose.

[4]      Mrs Haine died in 2015.  Her executors were given permission to bring an action under the Property (Relationships) Act 1976 to have recognised Mrs Haine’s legal interest in the couple’s relationship property as at the date of Mr Haine’s death. This  application  is  not  opposed  by  the  executors  of  the  estate  of  Mr Haine. Accordingly, it comes before me as a matter of formal proof.

Preliminary matter

[5]      There is one preliminary matter, however.  Counsel for the estate of Mr Haine points  out  in  a  memorandum  dated  22 May  2017  that  the  estate  of  Mr Haine consented to the case being transferred from the Family Court to the High Court but did not consent to leave being granted to the estate of Mrs Haine to commence the proceeding pursuant to s 88 of the Property (Relationships) Act.  Counsel suggests that the issue of leave remains live before this Court.

[6]      I consider this to be a moot point.  Regardless of the presence of consent or otherwise, Judge Whitehead in the Family Court at Tauranga on 13 March 2017 gave leave  for  the  estate  of  Mrs Haine  to  take  this  proceeding.    There  has  been  no challenge to that order.  Therefore it stands.

[7]      For the avoidance of doubt, if there is an irregularity, I would certainly grant leave and for the purposes of this judgment the ability of the estate of Mrs Haine to seek relief can proceed either in reliance upon the decision of Judge Whitehead or pursuant to the leave which I independently give.

Decision

[8]      I have no doubt that the application should be granted.   At the time of Mr Haine’s death in 1987, Mrs Haine was entitled to an equal share in the assets in Mr Haine’s estate as itemised in the probate of his Will because the assets were relationship property.  If the application is not granted then Mrs Haine’s share of the couple’s relationship property will be distributed according to Mr Haine’s Will and not hers.

[9]      I am advised that for the benefit of both estates there has been a subdivision and sale of the family home and the proceeds of that sale are now the only assets of Mr Haine’s estate which, with the effluxion of time, now exist.

[10]     Accordingly, the applicant’s claim is allowed.  I make an order pursuant to the Property (Relationships) Act 1976 that one-half of the nett proceeds of the estate of Robert Reginald Haine be paid to the applicant as the executor of the estate of the late Eileen Minna Haine.

Costs

[11]     So far as costs are concerned, and having heard from Mr Scott, I am of the view that costs should lie where they fall.  Essentially, this action has been brought on behalf of the estate of Mrs Haine to regularise a situation of long duration.  The executor of the estate of the late Mr Haine has taken no steps in opposition and has behaved responsibly.  It is in the interests of justice for costs to lie where they fall,

and I so order.

Brewer J