Hooper v Thackwell
[2024] NZHC 3298
•7 November 2024
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 sought. An extension of time was sought and granted for the filing of the statement of defence.
[7] On 22 December 2023, Mr Smith advised that he had been unable to make any further contact with the defendant, so he had not been in a position to take instructions or progress anything further. He requested the leave of the Court to withdraw, which was granted by Associate Judge Lester on 31 January 2024.
[8] Affidavit evidence was filed by the plaintiff and the proceeding was set down for formal proof, to be heard before Eaton J on 18 July 2024. Eaton J was concerned that some of the evidence filed by the plaintiff did not accord with the rules of evidence but further, given the legal issues which he described as “not straight forward”, he directed:
[16] In the circumstances I do not consider it to be in the interests of justice for this matter to proceed by way of formal proof absent either confirmation that Mr Thackwell is aware that the case is set down for a formal proof and will proceed to hearing without his participation or alternatively the appointment of counsel to assist the Court in the role of contradictor.
[17] I direct a copy of this minute be sent both to Mr Taylor and to the last known email address of Mr Thackwell and invite Mr Taylor to address the Court on the issues that I have raised at the hearing on 18 July.
[9] On 18 July 2024, the proceeding came before Eaton J and he granted an application for adjournment for further admissible evidence to be filed in support of the claim. At [17] and [18] of his minute, Eaton J said:
[17] Mr Thackwell must understand that having failed to file a statement of defence as directed, it is open to the Court to enter judgment in favour of the plaintiff. If he wishes to oppose the application, he will need to make application for leave to file a statement of defence out of time. I direct that Mr Thackwell be notified of any further formal proof hearings.
[18] If he has not taken steps to seek leave to file a statement of defence out of time, then the matter will proceed by way of formal proof hearing. It is important that Mr Thackwell also understands that it is not appropriate for him to communicate informally with the Registry. Those communications will not be referred to a Judge and will not be taken into account in determining this proceeding.
[10] The file was then referred to me. I made the following timetable directions in a minute I issued on 5 September 2024:
[2] I refer to the Minute of Eaton J dated 18 July 2024, in particular the directions he made in paras [15] and [17]. In order to ensure that the case is ready to proceed on the allocated date, I make the following timetable directions:
(a) any application for leave by Mr Thackwell to file a statement of defence out of time is to be filed and served no later than 5.00 pm on 20 September 2024; and
(b) any further admissible evidence to be filed on behalf of Ms Hooper is required to be filed no later than 5.00 pm on 18 October 2024.
[11] Copies of the minutes referred to above were forwarded to the defendant’s last known email address.
[12]The defendant has taken no further steps in the proceeding.
[13] The proceeding came before me on 6 November 2024 to be determined by way of formal proof. My minute of 6 November 2024 records why it has been adjourned. I have however decided to issue an interim judgment dealing with the plaintiff’s standing to bring the proceeding as that is not dependent on any further evidence being filed.
Discussion
[14] The deceased’s Will, a copy of which has been produced in evidence, appoints the defendant as sole executor and trustee. The original copy of the Will is likely in the defendant’s possession. There has been no grant of administration in the estate, nor is there likely to be a grant while the estate has no assets.
[15] In the case of contracts, conveyances and gifts, a transaction is only voidable at the suit of the person lacking capacity or their personal representatives.1 Currently the defendant is the deceased’s personal representative, and he has no interest in the claim that the deceased lacked capacity when the conveyance and gift was made to him. Nor has he taken steps in this proceeding.
[16] Mr Taylor submitted that there are two options available for the Court in this situation:
1 Scott v Wise [1986] 2 NZLR 484 at [492].
(a) to appoint the plaintiff as a temporary administrator of the deceased’s estate under s 7 of the Act; or
(b) to allow the claim to be brought by the plaintiff by way of a derivative action.
[17] The plaintiff favours the first option, which is easier to establish than the second. However, both options appear to be available to the Court. I also raised the option of an application being made under s 19 of the Act which outlines the process when an executor neglects to prove a Will. But, given the process provided for under that section, this would only prolong these proceedings, especially in light of the fact that there are other options I can properly consider to resolve the question of standing.
[18]Section 7 of the Act provides:
7 Administration pending legal proceedings
(1) Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant of administration, are pending, the court may grant administration of the estate of the deceased to a temporary administrator, who shall, until he or she is discharged or removed under section 21, have all the rights and powers of a general administrator, other than the right of distributing the balance of the estate remaining after payment of debts, funeral and testamentary expenses, duties, and fees, and every such temporary administrator shall be subject to the immediate control of the court and act under its direction.
(2) The court may, out of the estate of the deceased, grant to a temporary administrator appointed under this section such reasonable remuneration as the court thinks fit.
[19] As the plaintiff is seeking a declaration that the deceased’s last Will is invalid due to undue influence or incapacity, s 7 is triggered. There is therefore the ability for the Court to appoint the plaintiff as the temporary administrator of the estate to facilitate those claims.
[20] The next question is whether the plaintiff ought to be appointed as the temporary administrator given that she is also the protagonist in relation to the other causes of action. The alternative to the plaintiff is the appointment of an independent temporary administrator, such as the Public Trust. However, as the evidence in
relation to the proceedings thus far reveals, the estate is currently likely to have no assets. How an independent trustee would therefore be paid is an issue.
[21] If the Will is declared invalid, then the plaintiff stands to inherit under the intestacy provisions of the Act should her causes of action in relation to undue influence and/or unconscionability succeed and an order be made in relation to the gift to the defendant by the deceased. If the Will is not declared invalid, then the plaintiff has indicated she will seek provision from the estate under the Family Protection Act 1955 although, again, whether this is fruitful will depend on whether the claims of undue influence and/or unconscionability succeed. And there may be a limitation issue under s 9 of the Family Protection Act.
[22] I am persuaded that it is appropriate to appoint the plaintiff as temporary administrator of the deceased’s estate. Having read the evidence, it is clear to me that it is not in the defendant’s interest to provide any further information to the Court about the estate (and he has not taken any action in relation to these proceedings), and there is also a need for the estate to obtain the deceased’s medical records, particularly those in relation to her diagnosis of dementia in 2016 and the possibility that she was suffering from this earlier, at the time the Will was executed and the gifting occurred.
[23] I am satisfied that the Public Trust or an independent trustee will not want to fulfil this temporary role given that currently there appear to be no funds available to pay for their services.
[24] I record that, should I have decided that the appointment of the plaintiff under s 7 was not appropriate, I would have been prepared, for the purposes of this proceeding, to permit the plaintiff to bring the claim by way of derivative action.
[25] In Gaitz v Donovan, a daughter who had been excluded from the Will which was being challenged during an undue influence claim was permitted to bring the claim by derivative action.2 This case was also a case where the daughter was a beneficiary in an earlier Will which the proceedings sought to invoke.
2 Gaitz v Donovan (as executors of estate of Gaitz) [2022] NZHC 2107.
Result
[26] I make an order that the plaintiff be appointed as the temporary administrator of the estate of the late Enid Joyce Thackwell under s 7 of the Administration Act 1969. This appointment will continue until further order of the Court.
[27] I reserve the right of the plaintiff to apply to the Court, if and when it is appropriate, for her reasonable remuneration to be paid out of the estate.
Harland J
Solicitors:
Wilkinson Rodgers Lawyers, Dunedin.
Copy to:
D R Thackwell, Defendant.