BETWEEN LEE-ANN ELVY GUINESS Applicant AND SARAH-ANN KATHLEEN STARK Respondent

[2023] NZHC 2513

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-524

[2023] NZHC 2513

BETWEEN

LEE-ANN ELVY GUINESS

Applicant

AND

SARAH-ANN KATHLEEN STARK

Respondent

Hearing:	6 September 2023
Counsel:	B J J Sheehan and B Clearwater for Applicant N T U Thrupp for Respondent
Judgment:	7 September 2023

JUDGMENT OF CHURCHMAN J

[1]    William Axl-Rose Stark (Axl) died on 1 August 2023 at the age of 34. He died without having made a Will. It appears that he had no assets of any value as at the date of his death and the monetary value of his estate is likely to be negligible. His sole beneficiary is his 13-year-old son, WillJay, who resides in Australia with his mother, Vienna.

[2]    At the time of his death Axl lived with his aunt, Lee-Ann Elvy Guiness (Lee- Ann), at her address in Upper Hutt. He had lived with Lee-Ann on and off since the age of 16.

Reason for Court proceedings

[3]    A dispute has arisen between the deceased’s mother, Sarah-Ann Stark (Sarah- Ann), and the other members of the defendant’s family including:

(a)his maternal grandmother, Carol-Ann Stark;

GUINESS v STARK [2023] NZHC 2513 [7 September 2023]

(b)his brothers, Vynsent-Paige Edser (Vinny) aged 28; and Olaf-Dieter Stark (Olaf) aged 21;

(c)his de facto partner, Rebekah Martin (Rebekah); and

(d)the applicant, Lee-Ann.

[4]    The dispute is about who gets to make the funeral arrangements for the deceased and who is to get custody of the deceased’s ashes.

[5]    This dispute needs to be resolved promptly as it is now over a month since Axl died, his body has not been embalmed and remains in the mortuary where it will be progressively deteriorating.

What happened following death

[6]    Due to the circumstances of Axl’s death, the matter was referred to the Coroner. The preliminary police inquiries identified Lee-Ann as his next of kin and family representative.

[7]    On 2 August 2023, the duty Coroner directed a post-mortem examination. The Coroner released the body on 3 August. It was released to a funeral director in accordance with a request from Lee-Ann.

[8]    On the afternoon of 3 August 2023, Sarah-Ann contacted the National Initial Investigation Office (NIIO), a department of the Ministry of Justice which provides support to the duty Coroner. She asked to be recorded as the family representative.

[9]    On 4 August 2023, the funeral director informed NIIO of the dispute between Sarah-Ann and Lee-Ann and asked to transfer the body back to Wellington Mortuary. This was done.

[10]   At 5:56pm on 4 August 2023, NIIO and the Wellington Mortuary received a letter from the lawyer acting for Lee-Ann, Axl’s two brothers and partner, advising that they did not consent to the body being released to Sarah-Ann and requesting that

the body remain in the mortuary until agreement between family members or an order of the Court.

[11]   Although the body remains in the mortuary, it is no longer legally in the custody of the Coroner.

[12]   On 11 August 2023, the lawyers acting for Lee-Ann, Carol-Ann, Vinny, Olaf and Rebekah, sent a letter by courier and email to Sarah-Ann noting that attempts to resolve the dispute had not been successful and that, unless agreement could be reached, it would be necessary to apply for a Court order. The letter set out the relevant legal principles, set out what was understood to be Axl’s wishes, attached the written consents of the various family members supporting the proposal to appoint Lee-Ann as administrator of Axl’s estate, and also invited Sarah-Ann, if she did not agree with the proposal, to set out her wishes as to who should be appointed the administrator of the estate and what the funeral arrangements should be.

[13]   The letter indicated that if no response was received by 5:00pm on Tuesday 15 August 2023, an application would be made to the Court. The letter could be described as fair and balanced.

[14]   Sarah-Ann replied to the letter by way of email on 15 August 2023. The email was unhelpful in content and tone. Matters were not able to be resolved.

The proceedings

[15]   On 25 August 2023, Lee-Ann filed an originating application on notice for grant of administration, leave to commence proceedings by originating application, and directions as to service. It was accompanied by a memorandum of counsel, an extensive affidavit from Lee-Ann, and consents to the grant of letters of administration to Lee-Ann signed by Olaf, Vinny, Carol-Ann and Rebekah. Subsequently, additional affidavits dated 1 September 2023 were filed by Vinny, Olaf, Carol-Ann and Rebekah.

[16]   On 29 August 2023, a judicial teleconference was held following which Harland J issued a minute of 30 August 2023. Lee-Ann’s lawyer had asked for a brief opportunity to see if Axl’s father, Ashley Steele, could be located.   Mr Steele had

moved to Australia more than 30 years ago and had not subsequently had any contact with Axl.

[17]   When Sarah-Ann’s counsel was unable to provide an address for Mr Steele, Harland J dispensed with service of the originating application on him.

[18]   The minute noted that neither of the parties considered it appropriate to appoint a litigation guardian for WillJay but recorded that WillJay’s mother, Vienna, supported the application by Lee-Ann.

[19]An urgent half-day hearing was directed for Wednesday 6 September 2023.

[20]   Subsequently, on 4 September 2023, Sarah-Ann filed her own originating application seeking her appointment as administrator and requesting that this application could be heard at the same urgent fixture on 6 September.

[21]   The  application   was   supported   by   affidavits   from   Sarah-Ann   dated  1 September 2023 and 4 September 2023. There was no objection to me dealing with both applications at the one hearing. This decision therefore disposes of both applications.

Relevant factual background

[22]   The account of Axl’s life presented by Sarah-Ann and the account of all the other members of Axl’s family are irreconcilable. It is impossible, in the context of an originating application with untested affidavit evidence to completely resolve the many issues of conflict.

[23]   What can be said with some degree of confidence is that in the decade or so before his death, Axl was clearly a troubled young man with substance abuse and addiction issues, a criminal history and increasingly more serious mental health issues. It is also clear that during this period he had formed close relationships with a number of his extended family members who lived in the Hutt Valley and had relatively little contact with his mother who lived in South Taranaki.

[24]   Axl was the oldest of three brothers. They all shared the same mother, Sarah- Ann, but three different fathers. Axl was the oldest of the three siblings being six years older than Vinny and 13 years older than Olaf. Axl does not appear to have had any contact with his father in more than 30 years since his father moved to Australia.

[25]   Axl lived with Sarah-Ann at various addresses in the Hutt Valley, Christchurch and Patea/Waverley until the age of 16 years.

[26]   There is no dispute that at the age of 16, Axl left Sarah-Ann’s care and went to reside with Lee-Ann. There is a dispute as to the reasons for it. Lee-Ann deposes that she received a call from Axl saying that Sarah-Ann had kicked him out and asking if he could come and stay with her. She says she drove to Waverley, picked him up and took him back to her house.

[27]   Sarah-Ann deposes that Axl had become bored living at a small town and was restless, and that it was her suggestion that “we” ask Lee-Ann if he could stay with her for a few weeks.

[28]   It is not disputed that Axl did not just stay with Lee-Ann for a few weeks but remained with her for the next two years until he went flatting.

[29]   The pattern of Axl leaving Sarah-Ann’s care was followed by the next brother, Vinny, who Sarah-Ann deposes left at the age of 14 to live with his father, and the youngest brother, Olaf, who went to live with his father at the age of five.

[30]   It is not disputed that Axl began a relationship with Vienna when he was 18 and he and Vienna had a son, WillJay, when Axl was 21 years old. Neither is it disputed that when Axl’s relationship with Vienna broke down in 2011, when he was 22 years old, he went back to reside with Lee-Ann. Vienna moved to Australia with WillJay in 2011.

[31]   After staying some months with Lee-Ann, Axl lived with various other extended family members including Carol-Ann, Vinny’s father, and Olaf’s grandmother.

[32]   It appears that Axl had started smoking marijuana and sniffing glue from the age of about 12 or 13, his substance abuse increased as an adult and by the time he returned to live with Lee-Ann in 2014, he had a significant addiction problem.

[33]   By the age of 25, Axl had been diagnosed with attention deficit disorder and was frequently in trouble with the Police resulting in a number of Court appearances, including some for serious matters.

[34]   After four years living with Lee-Ann, Axl’s problems had escalated and Lee- Ann felt she needed a break. Axl went to live with Sarah-Ann in Christchurch and stayed with her for approximately three months.

[35]   It is not disputed that, after three months, Sarah-Ann returned to the North Island without Axl. Sarah-Ann disputes that she abandoned Axl in Christchurch saying that she had to return to Whanganui to get her bus out of safe storage where she kept it while she was away working. There was no dispute that Sarah-Ann did not at any time return to Christchurch to look after Axl.

[36]   It appears that after Sarah-Ann left Christchurch, Axl lived for a period with an acquaintance, Aimee, before getting his own place. There is conflicting evidence as to how long Axl lived with Aimee. There seems to have been a significant deterioration in Axl’s mental health from about 2020.

[37]   Axl was admitted to the Wellington Hospital Mental Health Unit under the Mental Health Act in March 2021. There is a dispute as to the nature and extent of his mental health problems.

[38]   Lee-Ann deposes to Axl reporting various concerns to her in late 2020 and early 2021 which resulted in him no longer being able to stay where he was living in Christchurch. Lee-Ann deposes to receiving disturbing phone calls and text messages from Axl and that Carol-Ann had to arrange for him to stay at a motel because of his inability to stay where he was. Her evidence was that Axl asked if he could come back up to live in Wellington and that Carol-Ann paid for his flight from Christchurch to Wellington and picked him up from the airport.

[39]   Lee-Ann refers to discovering, on Axl’s arrival in Wellington, that he had self- harmed and taking him to hospital to get a significant wound stitched. She says that it was the hospital’s assessment of Axl in relation to the treatment of the injury that resulted in him becoming an inpatient under the Mental Health Act.

[40]   Sarah-Ann challenges this evidence, in particular that Axl could have been suicidal, claiming that he was in good spirits when texting and talking to her two to three weeks previously. She also disputed the claim that Axl wanted to return to Wellington, referring to a text message Axl sent her on 27 April 2021 which said. “i thought leaving th hutt myt change that but they just hearded me bak.”

[41]   Sarah-Ann invites the Court to infer that the “they” being referred to was Lee- Ann, Carol-Ann, or both of them. That is not an inference for which there is a sound evidential basis.

[42]   From the fact that Axl became an inpatient under the Mental Health Act, I infer that at the end of March 2021 he was assessed by the health authorities as being so acutely mentally unwell as to require inpatient hospital care. Such a finding is consistent with Lee-Ann’s account of Axl’s deteriorating mental health.

[43]   There is no dispute that upon his release from hospital in April 2021, Axl went to reside with Lee-Ann and continuously resided at her house until his death on       1 August 2023.

[44]   For the last two years of his life, Axl was in a de facto relationship with Rebekah. The fact that the relationship existed is not challenged directly by Sarah- Ann although her counsel, in written submissions, referred to the two being “ostensibly” in a relationship. Sarah-Ann challenged Rebekah’s statement that Axl had made it clear that he did not want her to meet Sarah-Ann because of Sarah-Ann’s past behaviour which had damaged the family. Sarah-Ann deposed that she “strongly doubted” that Axl would have said the things that Rebekah recorded him saying about her. It is not disputed that Axl never introduced Rebekah to his mother.

[45]   It is clear that Sarah-Ann had minimal contact with Axl over the last two and a half years of his life. There was no direct contact at all but there was evidence of short text messages being exchanged about the time when Axl was acutely mentally unwell. Sarah-Ann acknowledges the lack of contact but says that this was because she was pre-occupied of her own health difficulties.

Conclusions on facts

[46]   To the extent that I can draw conclusions on the contested background material, it seems that, at least since the age of 16, apart from the three months Axl spent living with Sarah-Ann in Christchurch in 2018, Sarah-Ann had relatively little contact with Axl. In contrast, Lee-Ann had a much closer and more supportive relationship with Axl. Although Axl was an adult, he had numerous serious problems and required a far greater degree of care and assistance than a normal adult. The bulk of that support came from Lee-Ann.

[47]   I also conclude that from around 2005, Axl had significant and positive relationships with his maternal grandmother, Carol-Ann, with his two brothers Vinny and Olaf and, in the two years immediately prior to his death, with Rebekah. Axl also had relationships with other extended family members in the Hutt Valley who were a regular part of his life. In contrast, other than for three months in 2018, Sarah-Ann had little involvement in his life.

The law

[48]   There is little disagreement between counsel as to the applicable legal principles although they differ as to the application of those principles to the facts of this case.

[49]   The starting point is that the executor of the estate of a deceased person has first rights to the custody of the body of the deceased, and the right and responsibility to cremate or bury it.1

1      Takamore v Clark [2012] NZSC 116 at [143]–[145].

[50]   Where a deceased dies without having made a Will (as is the case here), the High Court Rules 2016 (HCR) list an order of priority of those who can apply to the High Court to administer the deceased’s estate.2 That list is:

(a)a spouse, civil union partner or de facto partner;

(b)children;

(c)the deceased’s parents;

(d)brothers and sisters;

(e)grandparents; or

(f)uncles and aunts.

[51]   However, HCR 27.35 is subject to s 6 of the Administration Act 1969. That sections provides:3

where by reason of the insolvency of the estate or other special circumstances the Court thinks it necessary or expedient to do so, it may–

(a)grant administration to such person or persons as it thinks expedient notwithstanding that some other person is appointed as executor or that, apart from this subsection, some other person would by law be entitled to a grant of administration.

[52]   In the case of Tod v Tod,4 the Court of Appeal endorsed the principles identified by Heath J in Farquhar v Nunns5 that the applicable principles are:

(a)The starting point is the Court’s duty to see estates properly administered and trusts properly executed.

(b)This jurisdiction involves a large discretion which is heavily fact- dependent.

(c)The wishes of the testator/settlor (evidenced by the appointment of a particular executor or trustee) are to be given consideration, but

2      HCR 27.35.

3      Administration Act 1969, s 6(2)(a).

4      Tod v Tod 2NZLR 145 at [22].

5      Farquhar v Nunns [2013] NZHC 1640.

ultimately the question is as to what is expedient in the interests of the beneficiaries.

(d)Expedience is a lower threshold than necessity, and imports considerations of suitability, practicality and efficiency. Misconduct, breach of trust, dishonesty, or unfitness need not be established.

(e)Hostility as between administrators/trustees and beneficiaries is not of itself a reason for removal, but hostility will assume relevance if and when it risks prejudicing the interests of the beneficiaries.

[53]   These principles have been consistently applied in cases dealing with applications under s 6 of the Administration Act.6

[54]   The issue for determination in this case is whether special circumstances exist to justify the Court departing from the recognised order of priority. Mr Sheehan submits that they do, and Mr Thrupp submits they do not. Both counsel acknowledge that the caselaw indicates that the situations where special circumstances are likely to be found will be rare.

[55]   My task in this case is two-fold. Firstly, to identify whether special circumstances exist; and secondly, to determine, in light of any special circumstances, is it expedient to vary the order of priority.

Special circumstances

[56]   As to what amounts to special circumstances, Mr Sheehan contends that the relationship between Axl and Sarah-Ann was “complicated” and that, at least since the age of 16, the person who primarily cared for and supported Axl was Lee-Ann. It is submitted that Lee-Ann effectively performed the role of mother, being the person that Axl turned to when he most needed care and support.

[57]   Mr Sheehan refers to the support for Lee-Ann’s application to be appointed executor from all of Axl’s close family members other than Sarah-Ann, and refers to examples of the poor quality of the relationship between Sarah-Ann and all of Axl’s other close family members over a sustained period of time.

6      See Harvey v Harvey [2021] NZHC 1771 at [39] and Re Estate Toner [2023] NZHC 1646 at [40].

[58]   In terms of  the  obligation  for  the  proper  administration  of  the  estate,  Mr Sheehan acknowledges that because the estate has minimal assets, the principal function of the executor will be making arrangements for the disposal of Axl’s body.

[59]   As to the wishes of Axl, Mr Sheehan points to the evidence of the applicant’s witnesses to the effect that Axl wanted to be cremated and to have a small service in the Wellington area.

[60]   It was submitted that the evidence showed that Axl had strong family and community ties to the area that he lived in when he died, and that his body or ashes should remain close to the family unit that Axl chose to spend the majority of his life with.

[61]   As to the consideration of expediency, Mr Sheehan reminded me that arrangements for the funeral needed to take place immediately with Axl’s body being transferred to the funeral directors for embalming and a funeral service.

[62]   It was acknowledged that there was hostility between Sarah-Ann and the other members of Axl’s family but it was submitted that that hostility was not a disqualifying factor and it would not affect the principal task of the executor namely to immediately make funeral arrangements.

[63]   Mr Thrupp referred me to a number of cases where special circumstances had been found but noted that these were generally in relation to unopposed applications. He emphasised that Sarah-Ann had a higher priority than other relatives and that she would be able to make the necessary arrangements for the disposal of Axl’s body. He indicated that Sarah-Ann, if appointed executor, intended to have the body cremated and to bring the ashes to her house in Patea.

[64]   Mr Thrupp submitted that the dispute over who should be appointed executor was unnecessary and that the application by Lee-Ann had “inflamed tensions between the family”. He submitted that the evidence of the text messages between Sarah-Ann and Axl in 2021 established that she was not estranged from Axl. He said the limited contact she had with Axl did not of itself establish estrangement.

[65]   He said that it was inappropriate for the Court to make any determination on factual matters which are said to be disputed. He said that Sarah-Ann sought solicitor and client costs in respect of her application.

[66]   While making findings of fact on disputed affidavit evidence is difficult, I am obliged to make some findings of fact in this case. Those findings are set out above at [46] and [47]. I find that there are special circumstances and that these are:

(a)although Sarah-Ann is biologically the mother of the deceased, the person to whom the deceased primarily looked to for help and support since the age of 16 was Lee-Ann;

(b)the facts of this case are unusual in that Axl’s need for care and support did not abate upon him entering adulthood but as a result of his vulnerabilities discussed above, he needed continued and, towards the end of his life very significant, care and support. That was provided to him by Lee-Ann, significantly assisted by Carol-Ann and not Sarah- Ann;

(c)Sarah-Ann has difficult relationships with her three sons. She acknowledged being estranged from Vinny but not Axl. I find the fact that there was no physical contact and (other than some text messages at the time Axl was acutely unwell), limited other contact is evidence of estrangement;

(d)Sarah-Ann was unrestrained in her affidavit in relation to her criticism of Lee-Ann, Sarah-Ann and other family members. There is obviously a deep animosity on her part towards all of those who provided material in support of Lee-Ann’s application;

(e)Sarah-Ann’s application is based exclusively on the exercise of her rights. She said in her affidavit:

Axl is my son and it is only natural under these circumstances that I put my son to rest as I see fit and have his remains/ashes remain with me.

(f)If Sarah-Ann was appointed executor, the level of her hostility is such that it is improbable that there would be a funeral for Axl which many of the most significant people in Axl’s life would be able to attend.

(g)Lee-Ann’s application is supported by Axl’s surviving de facto partner (who would, if the de facto relationship had been slightly longer, have had a priority over Sarah-Ann to be appointed executor), Axl’s grandmother (who clearly had a significant supporter involvement in his life), Lee-Ann, who was his primary caregiver particularly during his time of great need after his hospital admission, and his two brothers with whom he clearly had a warm and close relationship.

[67]   I turn now to consider whether in light of the special circumstances I have identified, it is expedient to vary the order of priority. The question is whether appointing Lee-Ann executor would result in Axl’s estate being administered properly and efficiently. While both Sarah-Ann and Lee-Ann are capable of arranging cremation and a funeral, only Lee-Ann is likely to do that in a way that will allow all of Axl’s extended family to participate.

[68]   In terms of where Axl’s ashes remain, if they remain with Lee-Ann they will be close to Rebekah, Axl’s grandmother and Axl’s brothers. These are the people who were most important in Axl’s life and whose relationship with them was most significant at the time of his death.

[69]   Normally the concept of expediency focuses on the interests of the beneficiary. The only beneficiary is WillJay and, any benefit to him in a financial sense of the appointment of an executor (irrespective of who that executor might be), is likely to be minimal. Understandably, given his age, WillJay’s views have not been sought in respect of the application but it appears that his mother (Axl’s former partner, Vienna), supports it.

[70]   For all of these reasons, I conclude that the particular facts of this case are such that it is one of the rare cases where special circumstances result in it being expedient to appoint someone lower in the order of priority than Sarah-Ann.

Outcome

[71]   I appoint Lee-Ann Elvy Guiness executor of the estate of the late William Axl- Rose Stark. I direct that Axl’s body be released to her and that she takes the necessary measures to conduct a funeral and then have the body cremated. Following cremation, Lee-Ann is to deal with Axl’s ashes as she sees fit. I direct that a copy of this decision be provided to the Coroner.

Costs

[72]   My preliminary view is that, in the absence of there being funds in Axl’s estate to meet the costs of the application, that costs should lie where they fall. However, if counsel for the applicant wish to pursue a costs application, they are to file and serve submissions of no greater than three pages in length within 10 days of the date of this decision, with the respondent having 10 days to file and serve a reply, again, of no greater than three pages in length. Costs will then be dealt with on the papers.

[73]   The findings that I have made in respect of the application by Lee-Ann necessarily result in the dismissal of the application by Sarah-Ann.

Churchman J

Solicitors:

ARL Lawyers, Lower Hutt for Applicant

Phoenix Law Limited, Wellington for Respondent