Estate of Alesana

[2021] NZHC 1128

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-603-406

[2021] NZHC 1128

IN THE MATTER OF THE ESTATE

Of ESA ALESANA

Deceased

AND

DAUNCY FA’AFETAI ALESANA

Applicant

Counsel:	J M H Holden for Applicant
Judgment:	20 May 2021

JUDGMENT OF GENDALL J

(Determined on the papers)

Introduction

[1]                  An application for Letters of administration under s 6(2) Administration Act 1969 was declined by the Registrar, as he considered a special grant was inappropriate as the applicant had expressed an intention to distribute the estate unlawfully. Counsel for the applicant, Ms Holden, has applied to review that decision.

Background

[2]  Mr and Mrs Alesana had two daughters, Dauncey Alesana and Joyce Togipau (née Alesana). Mr Alesana also had 14 other children. Mrs Alesana died intestate in April 2020 leaving an estate worth approximately $50,000.1 Mr Alesana died four

1      $40,000 of this in the form of a life insurance policy.

RE ESTATE OF ALESANA  [2021] NZHC 1128 [20 May 2021]

months later also intestate. No administrator has been appointed  for either Mr or Mrs Alesana’s estate.

[3]                  Under r 27.35(1) High Court Rules 2016 if a person has died intestate “the right to apply for letters of administration of that person’s estate is determined in accordance with the order of priority…” Under r 27.35(4) the surviving spouse is entitled to a grant of administration before the children of the deceased. Mr Alesana was therefore entitled to administer Mrs Alesana’s estate and on his death this entitlement passes to the administrator of his estate.2

[4]                  A daughter, Dauncey Alesana, applied to be granted letters of administration for Mrs Alesana’s estate under s 6(2) Administration Act. This allows the Court, in special circumstances if the Court thinks it necessary or expedient, to “grant administration to such person or persons as it thinks expedient notwithstanding that…some other person would by law be entitled to a grant of administration”.

The initial application

[5]                  In the initial application Ms Holden, for the applicant, submitted it would be expedient to allow Dauncey to administer Mrs Alesana’s estate because no steps have been taken to appoint an administrator for Mr Alesana’s estate and this may never occur. Further Mr Alesana had 16 children who are entitled to apply to be administrator of his estate,

[6]                  Ms Holden also submitted that special circumstances here necessitate a grant of administration to Dauncey. These special circumstances are expressed as follows. If the administrator of Mr Alesana’s estate is granted administration of Mrs Alesana’s estate, the $50,000 is likely to be distributed to all 16 children. It is said it is unreasonable for all 16 children to benefit from Mrs Alesana’s modest estate and it is in the interests of justice that the Court favours Mrs Alesana’s biological children, considering the major asset here is a modest life insurance policy.

2      As r 27.35(5) stipulates “The personal representative of a person in any of the classes referred to in subclause (4)… has the same right to a grant as the person represented”, the Court adopted the definition of personal representative in s 9 Trusts Act 2017 as “ in relation to a deceased person, means…an administrator of the deceased person’s estate appointed by the court” Estate of Doreen Pamela Hofmann HC Nelson P220/87, 18 December 1987.

[7]                  The Registrar, however, refused to grant letters of administration on the grounds of “the expressed intention to exclude [the other 14 children] from the distribution.” He concluded “The court cannot make a special grant based on an expressed intention to distribute the estate other than as the law provides.”

Application for review

[8]                  In her application for a review of the Registrar’s decision, Ms Holden re- framed her submissions. She stated the special circumstances which warrant granting letters of administration to Dauncy here are:

(a)Mr Alesana’s estate has no administrator, no steps have been taken to appoint an administrator, and there are 16 children who are entitled to apply. It would be inexpedient to delay distributing Mrs Alesana’s estate until Mr Alesana’s administrator has been appointed.

(b)Mrs Alesana’s estate is relatively small, with the insurance policy as the only major asset.

[9]                  Ms Holden argues here that the Registrar erred in denying the application on the basis of his impression about how the estate would be administered. The distribution of the estate is a separate question to that of who should be granted letters of administration. The Court is therefore able to grant letters of administration in favour of the applicant as she seeks in her application.

Relevant law and analysis

[10]              Section 6(2) Administration Act allows the Court in special circumstances where necessary or expedient, to bypass the normal order of priorities established by r 27.35, and to allow a special grant of administration.

[11]              In my view the Registrar’s decision here was correct for four reasons. First, there are no special circumstances which necessitate the Court’s intervention in this case. Ms Holden submits the Court should appoint Dauncey administrator because allowing the prospective administrators of Mr Alesana’s estate to administer

Mrs Alesana’s estate, it is claimed, would result in an unfair distribution of assets. However, the distribution she describes as unfair is the distribution required by intestacy laws. Granting letters of administration would not change the distributions of assets required by law.

[12]              Secondly, in exercising its discretion to exclude the prospective administrator the Court must have regard to the rights of all persons interested in the estate.3 Dauncey has indicated she wishes to be granted administration to prevent the distribution of the assets to Mrs Alesana’s non biological children. Granting letters of administration to such a person would be directly contrary to the interests of the non- biological children who have an interest in the estate by virtue of their  interest in  Mr Alesana’s estate as his children. It would therefore be inappropriate to allow a special grant of administration in all the circumstances.

[13]              Thirdly, the only point, as I see it, in favour of Dauncy’s application here, relates to the expediency of appointing an administrator for Mrs Alesana’s estate where it is unclear otherwise when an administrator of Mr Alesana’s estate will be appointed. Any of Mr Alesana’s 16 children are entitled to apply for this role. This includes Dauncey. She has noted that at this stage, however, no steps have been taken by any party. It may take some time for an administrator to be appointed. However, I do not consider it appropriate for the Court to exercise any discretion it has in this case. In most cases where the Court has bypassed an individual with greater claim for the role of administrator and appointed someone else, it has been with the entitled individuals’ consent and knowledge in circumstances where those individuals have been unable or unwilling to take on the role.4    This is not the case here.   There is no indication     Mr Alesana’s other children have either knowledge of, or may have consented to, the present application. Further, Dauncy has standing to apply for letters of administration of her father’s estate, and she may start this process at any time.

[14]              I also agree with the Registrar’s conclusion that it would not be expedient to allow a special grant based on an express intention to distribute inconsistently with intestacy laws.

3      Administration Act 1969, s 6(4).

4      Re Estate of Tanuvasa [2015] NZHC 3283; Re Estate of Berghan [2020] NZHC 1399.

Conclusion

[15]              In all the circumstances I agree it is inappropriate here for the Court to exercise its discretion to grant letters of administration for the estate of her late mother      Esa Alesana to Dauncey Alesana.

[16]The review application before me fails.

[17]Costs, if sought and appropriate, are reserved.

...................................................

Gendall J

Solicitors:

Holmden Horrocks, Auckland