Harvey v Harvey - [2021] NZHC 1771

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-002531

[2021] NZHC 1771

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: 29 April 2021

Appearances:

J B Murray for the Applicant

G J Thwaite for the Respondent

Judgment:

14 July 2021

Reissued:

16 July 2021

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 14 July 2021 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules and

re-delivered by me on 16 July 2021 in accordance with High Court Rules 2016, r 11.10

…………………………

Registrar/Deputy Registrar

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

HARVEY v HARVEY [2021] NZHC 1771 [14 July 2021]

Introduction

[1] Shannon Maree Harvey (Shannon), the applicant, seeks letters of administration appointing Robert Maurice Harvey (Robert), Shannon’s uncle, as administrator of a will dated 19 November 2014 (2014 will) of Graham Trevor Harvey (Graham), Shannon’s father. Graham died at Auckland on 28 March 2020.

[2] Shannon also seeks permission to commence this proceeding by originating application and an order requiring the respondent, Jatuporn Harvey (Jatuporn), who was Graham’s wife when he died and is the sole residuary beneficiary under the 2014 will, to produce the original 2014 will.

[3] Dawn Wong, who was appointed executrix and trustee of the 2014 will, has renounced her right to probate of the 2014 will.

[4] Jatuporn opposes the appointment of Robert as administrator of Graham’s will. Jatuporn abides the Court’s decision on the application to commence the proceeding by originating application. Jatuporn opposes any order that she produce personally the original of the 2014 will which, she says, she has never held.

Relevant background

[5] In 2001, Graham and Jatuporn were married in Thailand. They returned to live in New Zealand. This was Graham’s second marriage.

[6] Graham had two daughters, Shannon and Kelly-Ann, from his first marriage, which was dissolved in July 1998.

[7] During his working life, Graham built up his wealth through a furniture company, Forhomes Furnishers and Flooring Ltd (Forhomes), and related investments. He also invested in the bloodstock industry. Over time, Forhomes was renamed Forhomes Investments Ltd and much of Graham’s wealth, including his home in Danica Esplanade, Te Atatū Peninsula, was consolidated into the company. As at 11 March 2011, 199,000 of the 200,000 shares in Forhomes were held in Graham’s name.

[8] Robert, who was Graham’s only sibling and who believes he has a reasonably good knowledge of Graham’s financial affairs over the years, states that he believes that Graham’s estate, including property in Jatuporn’s name, could be worth a substantial amount.

[9] Jatuporn says Graham’s estate consists principally or exclusively of shares in Turners Automotive Group, which she estimates to be worth about $90,000. That estimate is on the basis that the shares in Forhomes and the Danica Esplanade property are not part of Graham’s estate.

[10]…

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 1771
Case: [2021] NZHC 1771
Decision Date: 14 July 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Shannon Maree Harvey, the applicant, sought letters of administration for the will of her father, Graham Trevor Harvey, who passed away on 28 March 2020. Shannon aimed to appoint Robert Maurice Harvey, her uncle, as the administrator of the will dated 19 November 2014. The respondent, Jatuporn Harvey, Graham's widow and the sole residuary beneficiary under the 2014 will, opposed Robert's appointment as administrator. Dawn Wong, who was appointed executrix and trustee of the 2014 will, renounced her right to probate. The central legal issue in this case was whether Robert, despite not being a devisee or legatee under the will, should be appointed as the administrator of Graham's will. The court had to consider the interests of all persons involved in the estate, particularly Jatuporn, the sole residuary beneficiary. The court ruled that while Robert's appointment might be expedient in some respects, it was not in the best interests of Jatuporn, given their estranged relationship. The court also highlighted the potential challenges to the will and the importance of appointing an impartial administrator. Consequently, the court declined to appoint Robert as the administrator of Graham's will and deferred making a decision on the appointment of an administrator until further consultation with counsel and the parties. The court also deferred making a decision on the production of the original 2014 will, as it appeared that the document, if still in existence, was held by Graham's previous solicitors.

Orders