Estate of Bennet
[2023] NZHC 3764
•18 December 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-710
[2023] NZHC 3764
UNDER the Property (Relationships) Act 1976, section 69 IN THE MATTER
of the Estate of Daniel James Bennet of Rongotea, Welder, Deceased
SANDRA MAREE SMART
Applicant
Hearing: Judges Chambers List on 11 December 2023 and Teleconference on 14 December 2023at 4 pm Counsel:
C J Jillett for Applicant
Judgment:
18 December 2023
JUDGMENT OF RADICH J
[1] The applicant has applied to set aside the notice of choice of option that she had made under s 61 of the Property (Relationships) Act 1976 (the Act).
[2] The late Daniel Bennet and the applicant were in a de facto relationship for approximately 11 years and are the parents of five children. The deceased has, in addition, three adult children from a previous relationship.
[3] The deceased died on 30 September 2018. In November 2018, Ms Smart filed a notice of choice of option under s 61 of the Act. She elected option A – to make an application under the Act for division of relationship property.
ESTATE OF DANIEL JAMES BENNET [2023] NZHC 3764 [18 DECEMBER 2023]
[4] However, the decision was made in error. When the applicant applied to the Court to be appointed administrator of the deceased’s estate in August 2021, she was advised by the Court that she was not entitled to apply in circumstances in which she had filed a notice of choice election option A. She would need to have chosen option B which would enable her to realise her beneficial interest in the deceased’s estate through intestacy.
[5] Under s 77(2) of the Administration Act 1969, the applicant is entitled to the full value of the deceased’s estate as it is less than the $155,000 prescribed amount referred to in that subsection.1
The requirements in s 69 are met
[6] During the first call of the application on 11 December 2023, and during the teleconference on 14 December 2023, the Court’s jurisdiction under s 69(1) of the Act was discussed. I am satisfied that, having regard to the definition of “court” in s 2 of the Act, the High Court has jurisdiction, not just through its originating jurisdiction but by reason of the fact that the proceeding as a whole began life in this Court through the application to appoint the applicant as the administrator of the deceased’s estate.2
[7] Each of the requirements in s 69(2) and (3) are met. The choice of option was not freely made because the applicant was presented with paperwork for the estate soon after her husband’s unexpected death and without having received independent legal advice. She did not fully understand the effect and implications of the choice with which she was presented. It was only when independent lawyers were later appointed that the reason for the delays in administering the estate were discovered and it was only then that the implications of the applicant’s choice of option were discovered. The view was reached, readily at that time, that option B needed to have been chosen.
1 Under reg 5 of the Administration (Prescribed Amounts) Regulations 2009, the amount from a deceased person’s estate that his or her surviving spouse or partner will receive if the deceased person dies intestate is $155,000.
2 See Thurston v Thurston [2014] NZHC 2267 and Estate of Fowler [2018] NZHC 2581 for examples of situations in which orders under s 69 have been granted in this Court.
[8] In these circumstances I am satisfied, having regard to the matters in s 69(3), that each of the requirements in s 69(2)(a) are met and that, in terms of s 69(2)(b), it would be unjust to enforce the applicant’s choice of option.
[9] Accordingly, the applicant’s notice of choice – election option A – filed on 29 November 2018 is set aside.
[10] I grant an extension of time of three months from the date of this order for the applicant to now make a choice under s 61 of the Act.
Radich J
Solicitors:
C J Law, Balclutha for Applicant
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