Craven-Carden v Kan - [2024] NZHC 3549

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-135

[2024] NZHC 3549

UNDER Section 21 of the Administration Act 1969 and Section 3 and 4 of the Family Protetion Act 1955

IN THE MATTER

of an application to remove and replace the administrator in the Estate of Gregory Nigel Carden

BETWEEN

OLIVIA MEI CRAVEN-CARDEN, MAXWELL TIARE CRAVEN-CARDEN AND ADAMINA ELIZABETH NGAIRE CARDEN

Plaintiffs

AND

MARILYN JANE KAN

Defendant

Hearing: 30 October 2024

Appearances:

M Freeman for Plaintiffs P D Barrett for Defendant

Judgment:

25 November 2024

JUDGMENT OF BOLDT J

Introduction

[1] On 24 August 2022, Gregory Carden (Greg) died unexpectedly while on holiday in Cambodia.1 He left no will. His children and his de facto partner are now locked in a dispute about his estate.

1 Because of the overlap in the last names of the parties, I will refer to all parties by their preferred first names.

CRAVEN-CARDEN v MARILYN JANE KAN [2024] NZHC 3549 [25 November 2024]

[2] Greg’s three oldest children — Ms Olivia Craven-Carden, Mr Maxwell Craven-Carden, and Ms Adamina Carden — are the plaintiffs, while the defendant is Ms Marilyn Kan. Marilyn was Greg’s de facto partner of at least 15 years, and they have one child together. She has two other children from a previous relationship; Greg considered them his stepchildren.

[3] In March 2023, Marilyn applied for letters of administration. She advised the Court that, to the best of her knowledge, the gross value of Greg’s estate did not exceed
$130,000. Marilyn was granted letters of administration on 11 July 2023.

[4] Marilyn’s valuation of Greg’s estate came as a surprise to the plaintiffs. They believe Greg’s net wealth to have been considerably greater. In late 2022, through their solicitors, they inquired about Greg’s assets and liabilities, together with the details of any jointly owned assets which constituted relationship property. Marilyn did not respond. Their solicitors wrote again in November 2023 setting out a series of specific concerns. They signalled the possibility of an application for Marilyn’s removal as administrator if she did not reply. Marilyn’s lawyers provided a holding response in December 2023, but did not write again.

[5] In February 2024 the plaintiffs brought the present proceedings. In its first iteration the plaintiffs sought Marilyn’s removal as administrator under s 21 of the Administration Act 1969. In July 2024, they amended their pleading to add an application under the Family Protection Act 1955, though that claim cannot be advanced until the identity of the administrator is settled.

[6] In an affidavit dated 8 April 2024, Marilyn recorded her consent to an order removing her as administrator, and advised that the only matter of contention was the identity of her replacement. Marilyn said she was concerned the plaintiffs’ nominee may be conflicted. In a Minute dated 24 May 2024, Radich J suggested Mr Frank Gradwell of Brandons as an alternative. All parties signalled their agreement, and the plaintiffs drew up an…

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 Craven-Carden v Kan

Details

AGLC: Craven-Carden v Kan [2024] NZHC 3549
Case: [2024] NZHC 3549
Decision Date: 25 November 2024

CaseChat Overview and Summary

The High Court of New Zealand was called upon to decide whether to remove Marilyn Jane Kan as the administrator of the estate of Gregory Nigel Carden and replace her with a new administrator. The plaintiffs, Olivia Craven-Carden, Maxwell Craven-Carden, and Adamina Carden, Greg's children, sought Marilyn's removal, contending that she had been uncooperative and that her valuation of the estate was inaccurate. Marilyn, Greg's de facto partner and mother of one of his children, opposed the removal, arguing that her estimate of the estate's value was correct and that her conduct had not prejudiced the estate's administration. The legal issues centred on whether it was expedient to remove Marilyn under Section 21 of the Administration Act 1969 and whether her removal would be in the interests of the beneficiaries.

The court considered the principles governing the removal of administrators, which include the duty to ensure estates are properly administered, the broad discretion of the court, and the need for impartiality and neutrality in the administrator's role. The court found that Marilyn had acted in a manner that was hostile to the plaintiffs and had failed to respond to their reasonable requests for information about the estate. The plaintiffs' concerns about the estate's value, potential undisclosed assets, and Marilyn's conflict of interest warranted an independent investigation. The court concluded that Marilyn's removal was expedient to protect the interests of the beneficiaries and to allow for a fair administration of the estate.

The court granted the plaintiffs' application, removed Marilyn as the administrator, and appointed Francis George Gradwell in her place. The court reserved the question of costs, noting that the plaintiffs were likely entitled to a substantial award due to Marilyn's repudiation of an earlier agreement.

Orders