Harvey v Harvey - [2021] NZHC 2374

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-002531

[2021] NZHC 2374

UNDER the Administration Act 1969

IN THE MATTER OF

an application for letters of administration

BETWEEN

SHANNON MAREE HARVEY

Applicant

AND

JATUPORN HARVEY

Respondent

Hearing: On the papers

Appearances:

J B Murray for the Applicant

G J Thwaite for the Respondent

Judgment:

10 September 2021

JUDGMENT OF VAN BOHEMEN J

[on appointment of administrator of will]

This judgment was delivered by me on 10 September 2021 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Vallant Hooker & Partners, Auckland Gregory J Thwaite, Auckland

HARVEY v HARVEY [on appointment of administrator of will] [2021] NZHC 2374 [10 September 2021]

Introduction

[1] In my judgment of 16 July 2021,1 I declined the application by Shannon Maree Harvey (Shannon) for letters of administration appointing Shannon’s uncle, Robert Maurice Harvey, administrator of a will dated 19 November 2014 of Shannon’s father, Graham Trevor Harvey, who died at Auckland on 28 March 2020.

[2] That application had been opposed by Graham Harvey’s widow, Jatuporn Harvey (Jatuporn), the sole residuary beneficiary under the will.

[3] Because Dawn Wong, who was appointed executrix and trustee of the will, renounced her right to probate of the will, my decision meant that there was no administrator of the will.

[4] There was also an outstanding issue regarding formal production of the original will.

[5] As recorded in my judgment,2 I deferred making any decision on the appointment of an administrator in order to give the parties an opportunity to agree on who should be appointed administrator. I also deferred a decision on the production of the original will because I had expected this matter to be resolved by the cooperation of counsel and solicitors.

[6] Although initial efforts to reach agreement on an administrator were unsuccessful,3 in a joint memorandum dated 3 September 2021, Mr Murray, counsel for Shannon, and Mr Thwaite, counsel for Jatuporn, advise that the parties have now agreed on a candidate for appointment by the Court.

[7] The agreed candidate is Ms Tara Wratten, the managing partner of Daniel Overton & Goulding. Counsel have provided copies of an email and letter, both dated 2 September 2021, from Ms Wratten that confirm her willingness to be appointed and set out her experience in administering estate and trust matters.

1 Harvey v Harvey [2021] NZHC 1771.
2 At [56].
3 Harvey v Harvey HC Auckland CIV-2020-404-002531, 12 August 2021 (Minute of van Bohemen J).

[8] In their joint memorandum, Mr Murray and Mr Thwaite also seek an order requiring production of the original will and note that the will must be produced in order for letters of administration to be granted.

Discussion

[9] Under s 6(1) of the Administration Act 1969, in granting letters of administration, I am required to have regard to the rights of all persons interested in the estate. Clearly, that includes Jatuporn,…

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.

Continue reading Harvey v Harvey

Details

AGLC: Harvey v Harvey [2021] NZHC 2374
Case: [2021] NZHC 2374
Decision Date: 10 September 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the applicant Shannon Maree Harvey sought letters of administration for her father, Graham Trevor Harvey's, will, dated 19 November 2014. The application was opposed by the respondent, Jatuporn Harvey, Graham's widow and sole beneficiary under the will. The court had to determine whether to grant the letters of administration and appoint an administrator in the context of the parties' disagreement and the absence of the original will. The court considered the rights of all interested parties, including Jatuporn, Shannon, and her sister, Kelly-Ann, who intended to bring a claim against the estate under the Family Protection Act 1955. The court found that special circumstances justified appointing an administrator, as Graham Harvey's estate required administration, and rights and claims to the estate needed resolution. The court concluded that Ms Tara Wratten, the agreed-upon candidate, was a suitable choice due to her experience and willingness to take on the role. However, the court required the production of the original will before formally granting the letters of administration.

The legal issues in this case centred around the appointment of an administrator for Graham Trevor Harvey's will under the Administration Act 1969 and the High Court Rules 2016. The court had to consider the rights of all interested parties and whether special circumstances justified granting administration to someone other than the statutory priority holder, Jatuporn Harvey. Additionally, the court had to address the requirement of producing the original will before granting letters of administration. The court also had to consider the appropriate procedure to obtain the will if neither party had it and whether a non-party discovery application was necessary. The court found that Ms Tara Wratten was a suitable candidate for the role of administrator due to her experience and willingness to take on the responsibility. However, the court emphasised the need for the production of the original will before formally granting the letters of administration.

The High Court, presided by Justice van Bohemen, found that special circumstances justified appointing an administrator for Graham Harvey's will, despite Jatuporn Harvey, the sole beneficiary, not seeking appointment. The court considered the rights of all interested parties and concluded that Ms Tara Wratten was a suitable candidate for the role due to her experience and willingness to take on the responsibility. The court also emphasised the need for the production of the original will before formally granting the letters of administration. The court hoped that the cost of a non-party discovery application could be avoided through a practical accommodation with Ogles Podwin & Associates, who may hold the original will. In light of these findings, the court ordered that, subject to the production of the original will or the best available copy of the will and the filing and serving of an affidavit, Ms Tara Wratten would be appointed to administer Graham Trevor Harvey's will.

The court's final order was that, subject to the production of the original will or the best available copy of the will dated 19 November 2014 of Graham Trevor Harvey and the filing and serving of an affidavit, the court would appoint Ms Tara Wratten to administer the aforementioned will. The order was made to ensure that the estate of Graham Harvey would be administered appropriately and that the rights and claims of all interested parties could be resolved in a timely manner.

Orders