Estate of Paora

[2021] NZHC 911

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-602833

[2021] NZHC 911

IN THE MATTER

of the Estate of GEORGE PAORA

PERA PORA

Applicant

On the papers
Counsel:	D M Shanahan for Applicant
Judgment:	28 April 2021

JUDGMENT OF THOMAS J

[1]    Mr Pera Paora (the applicant) seeks to review the refusal of the Registrar to grant him letters of administration over the estate of his father, George Paora (the deceased) who died intestate on 29 July 2018.1

Background

[2]    The deceased was survived by a spouse, Ms May Paora, who married the deceased on 8 November 2014. In connection with this application, and on legal advice, she has given written notice that she has elected not to make an application under s 61 of the Property (Relationships) Act 1976 for a division of relationship property. Instead, she elected to receive any interest to which she is entitled on his intestacy. By way of a witnessed statement, Ms Paora then confirmed that she consented to the grant of letters of administration being made to the applicant, her stepson.

1      Estate Paora, HC Wellington CIV-2020-485-602833, 18 November 2020.

Estate Paora [2021] NZHC 911 [28 April 2021]

[3]    The deceased’s other surviving adult children, Deanna Marie Paul and Carla May Paul, have also consented to the applicant being granted letters of administration over the deceased’s estate.

[4]The gross value of the deceased’s estate is approximately $34,000.

[5]    On 17 March 2020, the Registrar declined the application, on the basis that, given the value of the estate was below the prescribed amount, the applicant had no beneficial interest in the estate  and no right to apply.  The Registrar said that under   s 77(2) of the Administration Act 1969 (the Act), the spouse was the only person with a beneficial interest, and the only alternative would be for the applicant to make a special circumstances application under s 6(2) of the Act.

[6]    On 3 November 2020, counsel for the applicant filed a memorandum in response to the Registrar’s decision, referring to r 27.35 of the High Court Rules 2016 and saying that, while these indicated that the deceased’s surviving spouse had priority, she had elected not to make an application under s 61 of the Property (Relationships) Act 1976 for a division of relationship property.

[7]    In response to this memorandum, the Registrar issued a further decision on 18 November 2020, again declining to grant letters of administration to the applicant. The Registrar stressed that, while r 27.35 did set out the priority of applicants, it still required those applicants to have a beneficial interest, which the applicant in this case did not, unless s 6(2) of the Administration Act applied.

[8]    The applicant now files a without notice application for a review of the Registrar’s decision, an order enlarging the time for filing an application for the review of that decision, and a further order for letters of administration under s 6 of the Administration Act.

Relevant law and analysis

[9]    I am satisfied that the application can properly be dealt with without notice2 and that the interests of justice favour the grant of an extension of time for the filing of the application.3

[10]Section 6(2) of the Act provides:

(2)Where by reason of the insolvency of the estate or other special circumstances the court thinks it necessary or expedient to do so, it may—

(a)grant administration to such person or persons as it thinks expedient notwithstanding that some other person is appointed an executor or that, apart from this subsection, some other person would by law be entitled to a grant of administration:

(b)grant probate to 1 or more of the executors appointed by a will, notwithstanding that some other person or persons may also be appointed as an executor or executors.

[11]   In Re Estate of Berghan, Cull J appointed the applicant (the deceased’s biological daughter) as administrator of the deceased’s intestate estate, even though she was legally adopted out, and under the Adoption Act 1955 had no beneficial interest in her father’s estate. Notably, Cull J said:4

First, after having the opportunity of legal advice, the beneficially entitled siblings all certified by way of separate formal consent to Ms Sabin being granted administration. They have also all declared that they wish to give their interest in the deceased’s estate to Ms Sabin. While it is not usual for beneficiaries to simply give their interest over to another person, the fact that they have declared that is their wish and that  they have  all  consented to  Ms Sabin being granted administration is an important factor in the “special circumstances” consideration in this instance. Expediency is best upheld by granting Ms Sabin administration.

[12]   I also note the analogous case of Re Estate of Tanuvasa, where the deceased’s sister applied for letters of administration over a $20,000 intestate estate.5 Mallon J exercised her discretion in the applicant’s favour because it was expedient in the

2      High Court Rules 2016, r 7.46(3).

3      Rule 1.19.

4      Re Estate of Berghan [2020] NZHC 1399 at [12]. It is worth noting that in this case, Cull J also placed particular emphasis on the fact that the applicant was a whāngai child, which meant that her whakapapa connection was not severed.

5      Re Estate of Tanuvasa [2015] NZHC 3283.

circumstances to do so. This was because the deceased’s daughters lived in Samoa and had consented to the application by their mother’s sister. They would otherwise have to appoint an attorney in New Zealand, which would have involved disproportionate cost.

[13]   I am satisfied that, in the circumstances of the present case, it is expedient for me to exercise my discretion pursuant to s 6(2) of the Act. The following factors led to that conclusion:

(a)the deceased’s spouse has taken no steps to apply for administration since the deceased’s death and has confirmed she has no intention to do so;

(b)the deceased’s estate is modest;

(c)the applicant is familiar with the deceased’s affairs; and

(d)the applicant is the deceased’s son. The deceased’s spouse and the applicant’s two siblings consent to the application.

Result

[14]   I grant the application for review and extension of time. The application for an order granting the applicant letters of administration is granted.

Thomas J

Solicitors:

David Shanahan, Whangarei for Applicant