Estate of Hutton - [2024] NZHC 103

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-14

[2024] NZHC 103

UNDER the Wills Act 2007

IN THE MATTER

of the estate of BERNARD ALLIN HUTTON

AND

IN THE MATTER

of an application by CHRISTOPHER JOHN CHARLES SIMPSON and MARK DANIEL SHERRY

Hearing: (on the papers)

Counsel:

B R D Burke for Applicants

Judgment:

8 February 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 8 February 2024 at 2.15 pm pursuant to rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

RE ESTATE B A HUTTON [2023] NZHC 103 [8 February 2024]

[1]Bernard Allin Hutton (Bernard) died on 26 November 2023.

[2] Bernard was survived by his de facto partner, Sarah Jane Harding (Sarah). He also had two children, Kirstie Jan Hamilton (Kirstie) and Matthew James Hutton (Matthew). He had no other children.

[3]The applicants are partners in the law firm Harmans.

[4] Bernard died having executed a last will dated 28 March 2012. Under that will the applicants were appointed executors and trustees and the residue of the estate was to be divided equally between Kirstie and Matthew.

[5] Before his death Bernard gave instructions to the applicant, Christopher Simpson, to prepare a new will. The evidence is that this will was prepared in draft and that its terms were confirmed by Bernard over the telephone on 24 November 2023. Bernard was in hospital at the time, and it was expected that arrangements would be made on the following Monday for him to sign the will.

[6]The terms of the unsigned will include:

(a)it revokes all previous wills;

(b)it appoints two partners of Harmans as executors and trustees; and

(c)it divides the residue of the estate into three parts, and gives two parts to Sarah and one part shared equally between Kirstie and Matthew.

[7] Bernard died on 26 November 2023, before the unsigned will could be executed.

[8] The applicants are applying to the Court for an order declaring Bernard’s unsigned will to be a valid will under s 14 of the Wills Act 2007 (the substantive application).

[9]However, the matters before me are:

(a)an application for directions as to service of the substantive application; and

(b)an application for an order under s 7 of the Administration Act 1969 appointing the applicants as temporary administrators in respect of Bernard’s estate.

Directions as to service

[10] The applicants seek a direction that service of the substantive application be effected upon Sarah, Kirstie and Matthew. It appears they are the only persons who will be affected by the application, and I make a direction accordingly.

Temporary administration order

[11] The applicants seek an order appointing them as temporary administrators under s 7 of the Administration Act. The evidence is that Bernard was the sole director and shareholder of Barson Distributors Ltd, a pet food business that continues to trade with a view to sale. I understand the company has several employees.

[12] There are…

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: [2024] NZHC 103
Decision Date: 8 February 2024

CaseChat Overview and Summary

The Estate of Hutton case involved Bernard Allin Hutton, who passed away on 26 November 2023. His estate was being contested by his de facto partner, Sarah Jane Harding, and his children, Kirstie Jan Hamilton and Matthew James Hutton. The applicants, Christopher John Charles Simpson and Mark Daniel Sherry, were partners in the law firm Harmans and had been appointed executors and trustees under Hutton’s will dated 28 March 2022. The applicants sought an order to declare Hutton’s unsigned will, dated 24 November 2023, as valid under the Wills Act 2007. They also applied for directions regarding the service of their substantive application and for an order under the Administration Act 1969 to be appointed as temporary administrators of Hutton’s estate.

The legal issues the court had to decide were whether the applicants should be directed to serve their substantive application on Sarah, Kirstie, and Matthew and whether the applicants should be appointed as temporary administrators of Hutton’s estate. The court had to consider whether a legal proceeding touching the validity of Hutton’s will or the grant of administration was pending, whether interim administration was necessary to preserve and manage the estate pending the resolution of the proceedings, and whether the applicants were suitably qualified to perform the tasks of an administrator.

The court found that all conditions for appointing the applicants as temporary administrators were met, and it was appropriate for them to be appointed in circumstances where, regardless of which of Hutton’s wills was ultimately admitted to probate, the applicants would be the executors and trustees. The court granted orders directing service of the proceedings on Sarah, Kirstie, and Matthew and appointing the applicants as temporary administrators of Hutton’s estate under section 7 of the Administration Act 1969. The applicants' reasonable costs in the administration were to be paid out of the estate, and the order appointing them as temporary administrators would remain in place until the grant of probate of Hutton’s last will or further order of the Court.

Orders