Estate of Matthews

[2022] NZHC 1048

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-610365

[2022] NZHC 1048

IN THE ESTATE	of BARRY ATHOL MATTHEWS
Deceased

On the papers:
Counsel:	M J Wills for Applicant
Judgment:	16 May 2022

JUDGMENT OF CHURCHMAN J

[1]        Barry Athol Mathews, late of Whangarei, retired (the Deceased), died on or about 13 January 2021. He died intestate.

[2]        He had previously been married but that marriage had been dissolved long before his death. The Deceased had three children:

(a)Cheryl Anne Matthews (the applicant);

(b)Kevin Martin Matthews of New Plymouth, occupation unknown; and

(c)Sandra Marie Matthews, whereabouts unknown and occupation unknown.

[3]        The Deceased appears to have had little contact with his children for many years prior to his death. The children also seemed to have had very little contact with each other for some time.

RE THE ESTATE OF MATTHEWS [2022] NZHC 1048 [16 May 2022]

[4]        The applicant applied for Letters of Administration on Intestacy on the basis that she was a daughter of the Deceased and had a beneficial interest in the estate of the Deceased and was entitled to a grant of administration. A further ground was that the other persons with a priority higher or equal to that of hers (her siblings) had either been given notice of the intended application or were unable to be located.

[5]        The application for Letters of Administration was granted by the Court  on  28 July 2021.

The current applications

[6]        By application dated 4 May 2022, the applicant has applied for the following orders:

(a)leave to proceed by way of originating application;

(b)that the Executors of the Estate of the Deceased may distribute the Estate as if the missing beneficiaries, namely Kevin Martin Matthews and Sandra Marie Matthews, did not exist;

(c)that the residue intended for the missing beneficiaries be received by the applicant, Cheryl Anne Matthews, the surviving daughter of the Deceased.

[7]These applications were made on three grounds:

(a)all reasonable attempts have been made to locate the missing beneficiaries;

(b)the Deceased was not survived by any other person eligible to make a claim against the Estate; and

(c)the application does not affect any person other than the applicant.

[8]        The application was supported by a detailed affidavit of the applicant. That affidavit details the attempts that the applicant had gone to, to locate her siblings without success. Through a lawyer who had previously acted for him in criminal proceedings, the applicant’s brother, Kevin, was able to be notified of his father’s death but has not responded to requests that he contact the solicitors acting in this matter. Neither of the applicant’s siblings have responded to an advertisement on 2 November 2021 in the New Zealand Herald requesting that they contact the applicant’s solicitors in respect of the Estate.

[9]The Estate of the Deceased is relatively modest being made up of two sums,

$123,302.31 in a Westpac bank account, and approximately $38,000 held in the account of the Estate of the late Mollie Matthews (the Deceased’s mother) as an inheritance. There is one acknowledged debt of $16,000 to Timothy Joseph Carter.

[10]      I am satisfied that the applicant has made reasonable attempts to contact her siblings and they have been unsuccessful. I am minded to make the orders sought but subject to one requirement.

[11]      I note that the only newspaper advertisement was in the New Zealand Herald. That newspaper circulates principally in the metropolitan Auckland area. There is no information before the Court that would indicate that either of the applicant’s siblings reside in Auckland.

[12]      It seems that the applicant’s brother has, in relatively recent years, resided in New Plymouth and may well continue to do so. The documentation attached to the affidavit indicated that the applicant’s sister’s marriage was dissolved in Wellington on 14 December 2015. It is possible that the applicant’s sister may still reside in the Wellington area.

Outcome

[13]      I grant the orders applied for subject to the condition that the applicant’s counsel cause an advertisement, in the same terms  as  the  advertisement  in  the New Zealand Herald, to be published in the Taranaki Daily News  and  the  Dominion Post newspapers within 30 days of the date of this decision.

[14]      If no response to those advertisements is received by the applicant’s counsel within 20 working days of publication, then the Estate may be distributed in accordance with the terms of the application.

Churchman J

Solicitors:
Wills Westenra Ltd, Whangarei