Connolly v Eckhout - [2021] NZHC 727

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-463-18

[2021] NZHC 727

UNDER the Family Protection Act 1955

IN THE MATTER OF

the estate of JAN DANIEL ECKHOUT

BETWEEN

MICHELLE LEE CONNOLLY

Plaintiff

AND

KAREN ELIZABETH ECKHOUT

Defendant

Hearing: 29 March 2021

Appearances:

SRG Judd for the Plaintiff

No appearance by the Defendant

Judgment:

1 April 2021

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 1 April 2021 at 11.30am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Morrison Kent, Auckland To: S Judd, Auckland
K Eckhout, Australia V Tantum (California)
NK Schommer (South Africa)

CONNOLLY v ECKHOUT [2021] NZHC 727 [1 April 2021]

Introduction

[1] The plaintiff (Ms Connolly) is one of six children of the deceased, Jan Daniel Eckhout (Mr Eckhout). Mr Eckhout had two children (Ms Connolly and her sister) with his first wife, and had four children from a second marriage. The defendant (Mrs Eckhout) was Mr Eckhout’s third wife. There were no children of that marriage. Mr and Mrs Eckhout were married for some 20 years.

[2] Mr Eckhout passed away in October 2017. Mrs Eckhout is a primary beneficiary under Mr Eckhout’s Will. While she was not named executor in the Will,1 on 3 October 2018, and on her application, this Court appointed Mrs Eckhout as administrator of the estate. Mrs Eckhout accordingly has two “roles” in the present proceedings:

(a)a (neutral) administrator with a duty to assist the Court (see further at
[22] below); and

(b)a beneficiary of Mr Eckhout’s Will.

[3] Mr Eckhout’s Will made no provision for Ms Connolly. These proceedings concern Ms Connolly’s claim under the Family Protection Act 1955 (the FPA) for provision from her father’s estate. As far as I am aware, none of Mr Eckhout’s remaining children join in the claim, though two (based in South Africa and California respectively) have filed appearances reserving their rights.2

[4] The substantive hearing is scheduled to take place over three days commencing on 27 April 2021. Given the proximity of trial, there is some urgency in delivering of this judgment.

[5] Until recently, Mrs Eckhout was represented in these proceedings (in both her roles as administrator and beneficiary) by solicitors and counsel. On 25 February 2021, her solicitors and counsel were granted leave to withdraw. It

1 The named executor was a South African lawyer who renounced the executorship and appointed Mrs Eckhout in his place.
2 The have also provided email addresses as addresses for service.

appears this resulted from issues in relation to payment of their invoices. Mrs Eckhout now acts on her own behalf.

[6] Withdrawal of Mrs Eckhout’s counsel and solicitors evidently gave rise to some concern on Ms Connolly’s part (and her legal advisers), particularly given Mrs Eckhout’s dual roles as administrator and beneficiary. This is against the backdrop of the assets of a family trust (the Eckhout Family Trust), of which Mrs Eckhout was a trustee…

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 Connolly v Eckhout

Details

AGLC: Connolly v Eckhout [2021] NZHC 727
Case: [2021] NZHC 727
Decision Date: 1 April 2021

CaseChat Overview and Summary

Michelle Lee Connolly, one of Jan Daniel Eckhout's children, sought to have a preservation order made in relation to her deceased father's estate. The estate was being administered by Eckhout's widow, Karen Elizabeth Eckhout. Connolly applied for an order that Eckhout pay into court the amount she recently declared was the remaining value of the estate, being $1,560,000. The court was required to determine whether it was appropriate to make a preservation order under rule 7.55(3) of the High Court Rules, and whether it should instead require the administrator to provide further information on the estate's assets. The court considered that it was premature to make a preservation order without knowing more about the estate's assets. It concluded that it would be more appropriate to require the administrator to provide clear information on the current nature and whereabouts of the estate's assets. The court made an order that Eckhout file with the Court and serve on counsel for Connolly an affidavit or statutory declaration setting out information including the value of the estate, the form of the assets which make up the estate, who is presently holding those assets, and where, and information as to any distributions made from the assets of the estate. The application for an order pursuant to rule 7.55 was dismissed. The costs of the present application were reserved pending resolution of the substantive proceeding.

Orders