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, as sole beneficiary. It also includes Shannon and her sister, Kelly-Ann, who have indicated an intention to bring a claim against the estate under the Family Protection Act 1955.

[10]             Under s 6(2) of the Administration Act, where by reason of any special circumstances I think it necessary or expedient to do so, I may grant administration to such person as I think expedient.

[11]             I am satisfied that there are special circumstances in the present situation. Graham Harvey died almost 18 months ago. Graham Harvey’s estate needs administration and rights and claims to the estate must be resolved.

[12]             Jatuporn is the only person who has a right to be appointed administrator under the Administration Act and has a priority for appointment under r 27.26 of the High Court Rules 2016. However, Jatuporn does not seek appointment.

[13]             On the other hand, Jatuporn and Shannon, who has been pursuing the interests of herself and of Kelly-Ann, agree on the appointment of Ms Wratten.

[14]             It is apparent that Ms Wratten has the necessary skills, experience and appropriate qualifications for appointment and is willing to be appointed.

[15]             In these circumstances, I consider it  necessary  and  expedient  to  appoint Ms Wratten as administrator of Graham Harvey’s will.

[16]             However, before letters of administration are formally granted, the original will, or the best available copy of the will, must be produced. It is understood that the

original will may be held by  Ogles  Podwin  & Associates,  who  used  to  act  for Mr Graham Harvey. However, a full copy of the will has not, to date, been produced.

[17]             If neither party to this proceeding has the original will or the best available copy of the will, the appropriate procedure would be an application for non-party discovery. However, I would hope that the cost of such an application can be avoided through a practical accommodation with Ogles Podwin & Associates.

Order

[18]I make the following order:

Subject to production of the original will, or best available copy of the will, dated 19 November 2014 of Graham Trevor Harvey, and subject to the filing and serving of an affidavit as set out in Form PR 2 of sch 1 of the High Court Rules 2016, the Court will appoint Ms Tara Wratten to administer the aforementioned will.

G J van Bohemen J