Holmes v Holmes - [2015] NZHC 2576

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2015-419-000313 [2015] NZHC 2576

IN THE MATTER
of the Administrators of the Estate of

ARTHUR HENRY CLIVE HOLMES

BETWEEN

MURRAY BRIAN HOLMES AND DEBORAH FAITH BUCHANAN Applicants

AND

MELVA JOYCE HOLMES Respondent

Hearing: 14 October 2015

Appearances:

Michael Talbot on instructions from Peter Gorringe for the
Applicants
No appearances for the Respondent

Judgment:

20 October 2015

JUDGMENT OF MOORE J

This judgment was delivered by me on 20 October 2015 at 3:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

HOLMES & ANOR v HOLMES [2015] NZHC 2576 [20 October 2015]

Introduction

[1] Murray Brian Holmes and Deborah Faith Buchanan seek orders that:

(a) Melva Joyce Holmes be discharged as administrator of the estate of

Arthur Henry Clive Holmes; and

(b) each of the applicants be appointed as administrators in her place.

[2] On 29 September 2015 Hinton J granted leave to commence this proceeding by way of originating application and also ordered that service on Mrs Holmes be dispensed with.

Background

[3] Arthur Holmes died on 12 May 1987. Probate of his last will was granted on

28 July 1988.

[4] He was married to the respondent, Mrs Holmes. They had no children. The will appointed Mrs Holmes and Mr Holmes’ brother, Brian Holmes, as executors and trustees. Brian Holmes has since died.

[5] The will provided for Mrs Holmes to have a life interest in a farm at Piopio in the South Waikato. The farm is in four titles and is held by four registered proprietors in quarter shares. The estate owns one quarter; Mrs Holmes owns one quarter in her own right and a nephew and his wife (Colin Holmes and Helen Holmes) own a quarter each. The four parties have traded as a partnership since
1983. In practice, the farm has been managed by Colin and Helen Holmes.

[6] In April 2010 a niece of Mrs Holmes, Deborah Buchanan (“Mrs Buchanan”) who is one of the applicants, was granted a power of attorney by Mrs Holmes over Mrs Holmes’ property as well as her care and welfare.

[7] In an affidavit sworn on 31 August 2015 Mrs Buchanan described her relationship to Mrs Holmes. Mrs Holmes is her paternal aunt. As a child she spent a great deal of time with Mrs Holmes and described her as almost being like a mother. After her husband died Mrs Holmes spent a good deal of time at Mrs Buchanan’s home. Mrs Holmes has been something of a grandmother to Mrs Buchanan’s children. Days before Mr Holmes died Mrs Buchanan promised him that she would take care of Mrs Holmes.

[8] Mrs Buchanan kept that promise and over the last three to four years has spent considerable time with Mrs Holmes helping her with appointments, looking after her property and ensuring her well-being and best interests are attended to.

[9] Over recent years Mrs Holmes’ mental capacity and cognition has deteriorated. She now resides 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 Holmes v Holmes

Details

AGLC: Holmes v Holmes [2015] NZHC 2576
Case: [2015] NZHC 2576
Decision Date: 20 October 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Murray Brian Holmes and Deborah Faith Buchanan applied for the discharge of Melva Joyce Holmes as the administrator of the estate of Arthur Henry Clive Holmes and for themselves to be appointed in her place. The case was heard by Moore J. The applicants sought these orders based on Mrs Holmes’ incapacity to perform her role as administrator due to her deteriorating mental health and dementia. The court had to decide whether Mrs Holmes could continue in her role as the administrator of the estate and whether the applicants were suitable to replace her.

The court considered the provisions of the Administration Act 1969 and relevant case law, particularly Allen v Morgan, to determine the appropriate course of action. The court held that Mrs Holmes was incapable of fulfilling her responsibilities and that her removal was a suitable, practical, and efficient means of advancing the interests of the estate and its beneficiaries. The court also found that the applicants were suitable to be appointed as administrators. Mrs Buchanan had a close personal relationship with Mrs Holmes and had been assisting her with various matters, including her property affairs and personal care. Murray Holmes, who is Mrs Holmes’ nephew, also had a close relationship with the deceased and was knowledgeable about farming matters.

The court ordered that Murray Holmes and Mrs Buchanan be appointed as administrators in place of Mrs Holmes. The court imposed conditions on the new administrators, requiring them to file a full inventory of the estate and a true and perfect account if requested by the court. The court also ordered that the costs of the application be borne by the estate.

In summary, the High Court of New Zealand granted the applicants' request to discharge Mrs Holmes as the administrator of the estate and appointed Murray Holmes and Deborah Buchanan as administrators in her place. The court based its decision on the incapacity of Mrs Holmes to perform her role and the suitability of the applicants to replace her.

Orders