Hooper v Thackwell - [2024] NZHC 3298

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2023-425-88

[2024] NZHC 3298

BETWEEN
KAREN LEE HOOPER

Plaintiff

AND

DARRYL RONALD THACKWELL

Defendant

Hearing: 6 November 2024

Appearances:

B A J Taylor for the Plaintiff (via VMR) No appearance for the Defendant

Judgment:

7 November 2024

INTERIM JUDGMENT OF HARLAND J

(Appointment of temporary administrator)

Introduction

[1] Enid Joyce Thackwell died on 7 May 2022 when she was 95 years of age. She had been a widow since 2013 and was survived by two children, a son and a daughter, who are the named parties in this proceeding.

[2] No major assets remained in the deceased’s possession at the time of her death. Her last major asset was the former family home in Christchurch that was transferred to the defendant in October 2014 and in respect of which the purchase price was fully forgiven by the deceased. At the same time as these transactions were undertaken, the deceased made a Will, the only Will, in which she appointed the defendant as executor and trustee and left to him alone her residual estate.

[3]No grant of administration has been made in the deceased’s estate.

HOOPER v THACKWELL [2024] NZHC 3298 [7 November 2024]

[4]The plaintiff had issued proceedings pleading four causes of action:

(a) the first cause of action seeks that she be appointed as the temporary administrator of her late mother’s estate pursuant to s 7 of the Administration Act 1969 (the Act);

(b) the second cause of action seeks a declaration that the deceased’s Will is invalid as it was executed at a time when the deceased lacked testamentary capacity;

(c) the third cause of action pleads undue influence and seeks a declaration that the deceased’s last Will is invalid as a result of this, but also a declaration is sought that the gift of the Christchurch property to the defendant was unduly influenced and an order is sought requiring the gift (the sum of $330,000 plus interest) to be paid into the deceased’s estate; and

(d) the fourth cause of action is one of unconscionable dealing, where a declaration is sought that the gift of the Christchurch property to the defendant was an unconscionable dealing, and an order is sought requiring the gift (the sum of $330,000 plus interest) to be paid into the deceased’s estate.

[5] These proceedings were issued on 12 October 2023. I am satisfied that the defendant was served with them on 17 October 2023 as there is an affidavit of service dated 17 November 2023 deposing that this has occurred.

[6] The defendant has not taken any formal steps in the proceeding. It appears that he initially instructed counsel. Mr Smith filed a memorandum dated 17 November 2023 advising that the defendant had made contact with his firm about the proceedings. The memorandum outlined that there were questions about the defendant’s ability to fund the proceedings and that a grant of legal aid would be…

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 Hooper v Thackwell

Details

AGLC: Hooper v Thackwell [2024] NZHC 3298
Case: [2024] NZHC 3298
Decision Date: 7 November 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Hooper v Thackwell involved Karen Lee Hooper, the plaintiff, and Darryl Ronald Thackwell, the defendant. The central dispute pertained to the validity of a will executed by the deceased, Enid Joyce Thackwell, who passed away on 7 May 2022. The plaintiff sought to be appointed as the temporary administrator of her late mother’s estate, to declare the will invalid on grounds of lack of testamentary capacity, undue influence, and unconscionable dealing. The defendant, who had been appointed as the executor and trustee in the will, had not taken any formal steps in the proceedings. The court was tasked with determining the plaintiff's standing to bring the action and whether she could be appointed as the temporary administrator of the estate.

The primary legal issue the court had to decide was whether the plaintiff had the standing to bring the proceeding, specifically whether she could be appointed as the temporary administrator of her late mother’s estate under section 7 of the Administration Act 1969. The court considered two options: appointing the plaintiff as the temporary administrator or allowing the claim to be brought by the plaintiff as a derivative action. The court also contemplated the possibility of an application under section 19 of the Act, which provides a process when an executor neglects to prove a will. However, this would only serve to prolong the proceedings. The court concluded that appointing the plaintiff as the temporary administrator was the most appropriate course of action, given the current lack of assets in the estate and the need to obtain the deceased's medical records, particularly those related to her dementia diagnosis.

The court reasoned that the plaintiff should be appointed as the temporary administrator because the defendant had not taken any action in the proceedings and had failed to provide any information about the estate. The court was persuaded that it was not in the defendant's interest to provide further information and that an independent trustee would not want to take on the role due to the lack of funds. The court noted that if it had decided against appointing the plaintiff, it would have been prepared to permit the claim to proceed by way of derivative action, as in the case of Gaitz v Donovan. The court ultimately decided that the plaintiff should be appointed as the temporary administrator of the estate of the late Enid Joyce Thackwell under section 7 of the Administration Act 1969, an order that would remain in effect until further court direction.

The final orders of the court were as follows: Karen Lee Hooper was appointed as the temporary administrator of the estate of the late Enid Joyce Thackwell under section 7 of the Administration Act 1969. The court reserved the right for the plaintiff to apply for her reasonable remuneration to be paid out of the estate if and when appropriate.

Orders