Hislop v Public Trust - [2015] NZHC 1101

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-003297 [2015] NZHC 1101

UNDER the Property (Relationships) Act 1976

IN THE MATTER

of an appeal against a decision of the
Family Court at North Shore

BETWEEN

JAMES STEWART HISLOP Appellant

AND

PUBLIC TRUST AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SUZANNE HEAVEN (FORMERLY KNOWN AS SUZANNE WYATT) Respondent

Hearing: 20 May 2015

Appearances:

A E Ashmore for the Appellant
A Goodwin for the Respondent

Judgment:

21 May 2015

JUDGMENT OF GILBERT J

This judgment is delivered by me on 21 May 2015 at 2.45 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

HISLOP v PUBLIC TRUST [2015] NZHC 1101 [21 May 2015]

Introduction

[1] This appeal concerns the time limit under s 90 of the Property (Relationships) Act 1976 for commencing proceedings for the classification and division of relationship property following the death of a de facto partner. The Family Court concluded that the proceedings, which were commenced more than eight years after the date of death, were nevertheless in time because the estate was not a “small estate” as defined in s 2 of the Act and the proceedings were commenced
within 12 months after administration of the estate was granted.1 Alternatively, the

Court found that an extension of time could be granted because the application for the extension was made before the final distribution of the estate.

The facts

[2] In about December 2003, the appellant, Mr Hislop, entered into a de facto relationship with Suzanne Heaven, the deceased. In February 2004, they jointly purchased a property at Warkworth which became their home. In March 2005, the deceased made a Will appointing Mr Hislop and her solicitor as her executors and trustees. Mr Hislop was the sole beneficiary. The deceased died on 8 April 2005 as a result of which her interest in the home was extinguished and accrued to Mr Hislop by survivorship. The only assets in the estate comprised the sum of $246 in a bank account and a tax refund of $309. There was also a debt of $1,128.

[3] The executors did not apply for probate because they took the view that the value of the estate did not exceed $15,000 and was therefore a “small estate” for the purposes of the Administration Act. They completed the administration of the estate when they paid the tax refund to Mr Hislop in August 2006. This was the last remaining asset to be distributed.

[4] On 19 December 2006, the deceased’s daughter filed an application for probate and for the appointment of the Public Trust as executor of the estate. This was with a view to the Public Trust making an application under the Property
(Relationships) Act in respect of the home. If successful, this would enable the

1 Public Trust v Hislop [2014] NZFC 9170.

deceased’s daughter to make a claim against the estate under the Family Protection

Act 1955.

[5] The application for probate was discontinued in…

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 Hislop v Public Trust

Details

AGLC: Hislop v Public Trust [2015] NZHC 1101
Case: [2015] NZHC 1101
Decision Date: 21 May 2015

CaseChat Overview and Summary

In Hislop v Public Trust, the High Court considered an appeal by James Stewart Hislop against a Family Court decision that proceedings for the classification and division of relationship property following the death of his de facto partner, Suzanne Heaven, were in time. The central issue was whether the estate was a "small estate" as defined in section 2 of the Property (Relationships) Act 1976, which would have imposed a time limit for commencing such proceedings. The Family Court had concluded that the estate was not a small estate, and thus, the proceedings were within the time limits. Alternatively, it found that an extension of time could be granted because the application was made before the final distribution of the estate.

The court examined the nature of the deceased's interest in the jointly-owned property at Warkworth, which became their home. The deceased made a Will appointing Mr Hislop as the sole beneficiary, and her interest in the property passed to him by survivorship upon her death. The executors, considering the estate value did not exceed $15,000, did not apply for probate, treating it as a small estate. The last remaining asset, a tax refund, was distributed to Mr Hislop in August 2006. The deceased's daughter subsequently applied for probate, intending to make a claim under the Family Protection Act 1955 if successful. The Public Trust, appointed as the estate administrator in April 2013, sought an extension of time for proceedings under the Property (Relationships) Act, which the Family Court granted.

The High Court disagreed with the Family Court's reasoning. It held that the deceased's former interest in the home did not form part of the estate as it was extinguished upon her death and passed to Mr Hislop by survivorship. Consequently, the estate was a small estate, and the time limit for commencing proceedings had expired. The court also found that the estate had been finally distributed by August 2006, and no application for an extension of time was made until nearly seven years after this distribution. Therefore, the appeal was allowed, the Family Court's decision was set aside, and the proceedings were deemed out of time and struck out.

Orders