Estate of HR - [2016] NZHC 95

ORDER PROHIBITING PUBLICATION OF THE NAMES OF THE APPLICANT, BENEFICIARIES AND PROPOSED REPLACEMENT EXECUTOR. SEE PARAGRAPH [25].

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-003067 [2016] NZHC 95

UNDER

IN THE MATTER OF

AND

IN THE MATTER OF

Section 21 of the Administration Act 1969

the Estate of HR, late of Auckland,
New Zealand, Retired Baker (Deceased)

an application by JM of Auckland, Retired Solicitor, for an Order for Discharge of Executor and for Appointment of a further person to be Executor in his place

Applicant

Hearing: [On the Papers]

Counsel:

P A Fuscic for the Applicant

Judgment:

5 February 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 5 February 2016 at 4.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: McVeagh Fleming, Auckland

ESTATE OF HR (Deceased) [2016] NZHC 95 [5 February 2016]

[1] The applicant (Mr M) is the current executor of the estate of HR and trustee of his will. He is retiring and wishes for Mr S to replace him as executor and trustee. He seeks leave to bring an application under s 21 of the Administration Act 1969 by way of originating application for that purpose.

[2] There are seven beneficiaries of the estate who are the children of Mr R. Mr M seeks an order appointing a litigation guardian for one of those beneficiaries, Mr JR. Mr JR is 70 years old. He has been diagnosed with paranoid schizophrenia. There is concern that he could be vulnerable to abuse and exploitation if he is made aware of the financial details of the Trust in the course of the proceedings.

[3] Directions as to service, orders suppressing the name of Mr JR and all evidence concerning his personal circumstances, and an order prohibiting search of the Court file are also sought.

Leave to commence proceedings by way of originating application

[4] The originating application procedure is designed to provide a speedy and cost-effective mechanism for the resolution of certain statutory applications. The Court may permit any proceeding not specifically listed in rr 19.2 to 19.4 to be commenced by originating application.

[5] The application to replace the executor of the estate is straightforward and will be uncontested. With the exception of Mr JR, all other beneficiaries of the estate have provided consent to the orders replacing Mr M with Mr S.

[6] I am satisfied that the application is suitable for the originating application procedure and leave is granted accordingly.

[7] Rule 4.35 permits the Court to appoint a litigation guardian if satisfied that the person for whom a litigation guardian is to be appointed is an incapacitated person. An “incapacitated person” is defined in r 4.29 to mean:

4.29 Incapacitated person, litigation guardian, and minor defined

For the purposes of these rules,—

incapacitated person means a person who by reason of physical, intellectual, or mental impairment, whether temporary or permanent, is—

(a) not capable of understanding the issues on which…

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.

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Details

Case: [2016] NZHC 95
Decision Date: 5 February 2016

CaseChat Overview and Summary

The High Court of New Zealand dealt with an application by Mr. M, the executor of the estate of HR, who wished to retire from his role and be replaced by Mr. S. Mr. M sought leave to bring the application under Section 21 of the Administration Act 1969 by way of an originating application. There are seven beneficiaries of the estate, who are the children of Mr. R. Mr. M sought an order appointing a litigation guardian for one of those beneficiaries, Mr. JR, who has been diagnosed with paranoid schizophrenia and is considered vulnerable to abuse and exploitation if made aware of the financial details of the Trust in the course of the proceedings. The court had to decide whether the application was suitable for the originating application procedure and if leave should be granted. Furthermore, the court had to consider if Mr. JR was an incapacitated person, warranting the appointment of a litigation guardian, and if so, who would be appropriate for the role.

The court granted leave for the originating application procedure as the application to replace the executor of the estate was straightforward and uncontested, except for Mr. JR. The court found that Mr. JR met the definition of an incapacitated person due to his mental illness and lack of capacity to foresee the consequences of his decisions and manage his own affairs. The court deemed it necessary to appoint a litigation guardian for Mr. JR, and Ms. Wendy Davis, a Wellington solicitor, was considered appropriate for the role. The court also granted orders for service and suppression of certain details to protect Mr. JR's safety and privacy.

In conclusion, the court granted leave for the originating application, appointed Ms. Wendy Davis as the litigation guardian for Mr. JR, and made orders for service and suppression of certain details. The names of the applicant, beneficiaries, and the proposed replacement executor were also anonymised.

Orders