Frost v Bell

[2024] NZHC 3429

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-691

[2024] NZHC 3429

UNDER

Administration Act 1969 and Part 27 of the High Court Rules 2016

IN THE ESTATE OF

BARRY PETER O’SHEA (deceased)

BETWEEN

JESSICA ANNA FROST

Applicant

AND

DANIEL BELL

First Respondent

ELYSE BELL
Second Respondent

JODIE O’SHEA

Third Respondent

KATELYN CLARK

Fourth Respondent

Hearing:

18 November 2024

Appearances:

MRG van Alphen Fyfe

No appearance by or for the Respondents

Judgment:

19 November 2024

JUDGMENT OF MANDER J

This judgment was delivered by me on 19 November 2024 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

FROST v BELL [2024] NZHC 3429 [19 November 2024]

[1]                 Jessica Frost has applied in solemn form for letters of administration in respect of the estate of her deceased father, Barry Peter O’Shea. Mr O’Shea died without a will. He left a modest estate of approximately $17,000. The application is made in solemn form, rather than an application without notice, primarily because of the anticipated need for the Court to make findings relating to a specific factual issue, namely Ms Frost’s status as a child of Mr O’Shea.

[2]                 Other matters identified for the Court’s consideration include whether other parties with an interest in the administration of Mr O’Shea’s estate have had the opportunity to be heard, and that all matters necessary for the granting of letters of administration have been proved.

[3]                 The application is premised on Mr O’Shea having not been survived by a spouse, civil union partner or de facto partner entitled to succeed on intestacy, and there being no other person with a higher priority to a grant of administration than Ms Frost.

[4]                 Three affidavits have been filed in support of the application from Ms Frost herself, her mother Lesley Frost and David O’Shea, the deceased’s brother and     Ms Frost’s uncle. This evidence addresses the matters of which the Court needs to be satisfied to grant the application for letters of administration.

Background

[5]                 Mr O’Shea died on 17 April 2023. He is survived by four children, in addition to Ms Frost. Those children have an equal priority to a grant of administration and therefore an interest in the application. Each of them is named as the first to fourth respondents to the statement of claim. They have all been served with the proceeding but none have sought to take any steps in respect to it.1 Accordingly, the matter has proceeded by way of formal proof.

1      The first respondent, Daniel Bell, was served on 22 January 2024 by email with his consent; the second respondent, Elyse Bell, was served on 13 July 2024 by personal service; the third respondent, Jodie O’Shea, was served pursuant to an order for substituted service on 25 June 2024; and the fourth respondent, Katelyn Clark, was served on 23 January 2024 by email with her consent.

[6]                 Mr O’Shea died at the Barbados rest home in Christchurch. I have viewed his death certificate. David O’Shea deposes that his brother died unexpectedly without having made a will, despite David’s encouragement that he do so. Ms Frost has made enquiries to locate any will that may nevertheless have been made without the family’s knowledge. She arranged for advertisements to be placed in the Christchurch branch of the Law Society’s newsletter on 9 and 16 January 2024. No response has been received to those notices. In the absence of any will having come to light, or there being any knowledge of Mr O’Shea having made a will, I am satisfied Mr O’Shea died intestate.

Mr O’Shea was Ms Frost’s father

[7]                 Despite Mr O’Shea not having been named as Ms Frost’s father on her birth certificate, the evidence clearly establishes he was her father.

[8]                 Ms Frost deposes to Mr O’Shea having always acknowledged he was her father. She would visit him as a child and stay at his home both in Christchurch and, subsequently, in Palmerston North. Ms Frost details how she would spend time with Mr O’Shea and her siblings both as a child and as an adult, and how Mr O’Shea would visit her at her home at Christmas and on other occasions. This contact continued up until the last months of Mr O’Shea’s life. Ms Frost organised Mr O’Shea’s funeral and cremation after his death.

[9]                 Lesley Frost confirms that Mr O’Shea was Ms Frost’s father and his acknowledged paternity. She describes how, notwithstanding their relationship having come to an end before Ms Frost was born, Mr O’Shea travelled to Masterton to be present at her birth. Photographs have been exhibited showing Mr O’Shea holding a newly born Ms Frost. She confirms how Ms Frost would travel to visit Mr O’Shea during school holidays and the father and daughter’s continuing relationship when Ms Frost became an adult.

[10]             David O’Shea confirms  that  his  brother  always  acknowledged  he  was  Ms Frost’s father from the day she was born. He introduced Ms Frost to her grandmother (David O’Shea and Mr O’Shea’s mother) in the first few years of her life. David confirms Ms Frost’s involvement in making arrangements for her father’s

funeral and being instrumental in arranging for one of Mr O’Shea’s previously estranged sons to attend the ceremony.

No other person of higher priority in title, nor other person of equal priority seeking a grant of administration

[11]             There was no evidence of any person with a higher priority to a grant of administration than Ms Frost. Mr O’Shea was married twice, but I have sighted the orders dissolving both marriages in 1988 and 1992, respectively. Ms Frost confirms that her father did not subsequently marry, nor was he living in a de facto relationship at the time of his death.

[12]             Persons with an equal priority to a grant of administration to Ms Frost, namely Mr O’Shea’s four other children, have all been served and none have sought to take part in the proceeding. Ms Frost has confirmed that Mr O’Shea had only four other children apart from herself. Each of the four other children have been served with the proceedings and, as already noted, none have filed statements of defence or sought to take any steps in respect to the proceedings.

[13]             It follows that no one with an equal priority to a grant of administration contests Ms Frost’s application for such a grant. The Court is therefore satisfied there are no persons with a higher priority than Ms Frost and no persons of an equal priority have sought to contest Ms Frost’s application.

Formal matters required for a grant of administration

[14]             Ms Frost advises that to the best of her knowledge the gross value of the estate does  not  exceed  $17,000.  She  has  also  undertaken  to   faithfully   administer  Mr O’Shea’s estate in accordance with the law and, if required, to provide a complete inventory and account of the estate. Given the estates modest value, I do not consider that is a necessary requirement.

Conclusion

[15]             Being satisfied Ms Frost is the child of Mr O’Shea; that the parties with an interest in the administration of Mr O’Shea’s estate have had the opportunity to be

heard; and all matters necessary for the granting of letters of administration have been satisfied, there will be an order that letters of administration of the estate of the deceased, Mr Barry Peter O’Shea, be granted to the applicant, Jessica Anna Frost.

[16]I direct that any costs and disbursements be paid from Mr O’Shea’s estate.

Solicitors:
Izard Weston, Christchurch