Estate of Fowler

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-609011 [2018] NZHC 2581

INTHE ESTATE of HARLEY JAMES FOWLER of Auckland, New Zealand, Engineer, Deceased

On the papers

Counsel: C Morgan

Date:

2 October 2018

JUDGMENT OF GRICE J

(Setting aside notice of choice of option under s 61 of the Relationship
(Property) Act 1976)

[1] Mrs Fowler has made a without notice interlocutory application to set aside her notice of choice of option made under s 61 of the Relationship (Property) Act 1976.

[2] Mr Fowler died in Thailand about 23 May 2018. Mr and Mrs Fowler have a daughter who is now two and half years of age. Mrs Fowler filed a notice of choice of option under the Relationship (Property) Act 1976 on 3 July 2018.

[3] It has since been discovered that the choice that Mrs Fowler took in that notice was made in error. There are a number of contributing circumstances, however, I am satisfied that the choice of option was done in error and that error was not picked up by the certifying solicitor when advising Mrs Fowler as the surviving spouse. Mrs Fowler had wanted to ensure that she could secure a grant of letters of administration of the estate of her husband. I am satisfied that the choice of options should be set aside and do so accordingly.

Grice J

IN THE ESTATE OF HARLEY JAMES FOWLER [2018] NZHC 2581 [2 October 2018]

Solicitors:
Lunn & Associates, Napier

CaseChat Overview and Summary

The matter before the High Court of New Zealand was an application by Mrs Fowler to set aside a notice of choice of option under section 61 of the Relationship (Property) Act 1976. Mrs Fowler had filed the notice on 3 July 2018, after the death of her husband, Mr Fowler, who passed away in Thailand on approximately 23 May 2018. The couple had a young daughter together. Mrs Fowler sought to set aside the notice as she had discovered that the choice made in the notice was erroneous. The court was required to determine whether the notice should be set aside and, if so, under what circumstances.

The primary legal issue before the court was whether the notice of choice of option could be set aside due to the error made by Mrs Fowler. The court considered the relevant provisions of the Relationship (Property) Act 1976 and the circumstances surrounding the making of the notice. The court also took into account that the certifying solicitor had not identified the error when advising Mrs Fowler. The court found that the error was significant and that the choice of options should be set aside.

In its judgment, the court held that the notice of choice of option should be set aside due to the error made by Mrs Fowler. The court was satisfied that the error was not trivial and that it had not been identified by the certifying solicitor. The court found that the choice of options should be set aside as Mrs Fowler had intended to secure a grant of letters of administration of her husband's estate, which was not achieved due to the error. The court granted the application and set aside the notice of choice of option accordingly.

The court made no further orders in the matter, as the primary objective of setting aside the notice had been achieved. The decision provides guidance on the circumstances in which a notice of choice of option under the Relationship (Property) Act 1976 may be set aside due to an error made by the surviving spouse.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established