In the Matter Of the estate of Bruce Neville Hamilton, of Auckland, Retired, Deceased

[2024] NZHC 3025

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-615353

[2024] NZHC 3025

IN THE MATTER OF

the estate of BRUCE NEVILLE

HAMILTON, of Auckland, Retired, Deceased

On the papers:
Counsel:	S Palmer for Applicants
Judgment:	16 October 2024

JUDGMENT OF GRAU J

[1]                 The applicants, Shane Cuthbert and Fiona Mouat, have applied for letters of administration under s 6(2) of the Administration Act 1969 appointing them as administrators of the will of Mr Bruce Neville Hamilton.

[2]                 They also seek permission to commence this proceeding by originating application, as well as their reasonable legal costs and disbursements of the application to be paid out of the estate. The application has been referred to me as duty Judge. Because it is not opposed, I consider it is appropriate to deal with this matter on the papers.

Background

[3]                 The deceased, Mr Hamilton, died in September 2023, aged 87. His last will is dated 2 December 1996. He appointed his wife, Janice Hamilton, as his sole executor. Mrs Hamilton is 85 and suffering from advanced dementia associated with Parkinson’s disease. She is now in full-time care. A Health Practitioner’s Certificate of Mental Incapacity confirms her cognitive impairment.

ESTATE OF HAMILTON [2024] NZHC 3025 [16 October 2024]

[4]                 Mrs Hamilton is thus incapable of acting as an executor. In the absence of another person with a clear right to be appointed, the applicants, who are a daughter and a son-in law of the  deceased, say they should be granted administration under    s 6(2) of the Administration Act. They are members of Mr Hamilton’s family and all persons of an equal or higher entitlement to apply have been given notice of, or have consented to, the application. Mrs Hamilton has also appointed the applicants as enduring power of attorney over her property (although the current status of that power of attorney is said to be uncertain), so such an order appointing the applicants as executors of Mr Hamilton’s estate would also give effect to Mrs Hamilton’s intention to appoint the applicants as her attorneys.

Application to commence proceedings by originating application

[5]                 Under r 19.5 of the High Court Rules 2016, the Court may permit any proceedings to be commenced by originating application if it is in the interests of justice to do so. Relevant considerations for the granting of leave include whether the proceeding is a straightforward application that does not require detailed pleading for its fair resolution.1

[6]                 I consider the application is appropriate and it is the interests of justice that these proceedings be commenced by originating application in order to permit their just, speedy and inexpensive determination. The proceedings here involve a straightforward application under a specific statutory provision, where the issues that arise can be clearly defined and confined.2 I bear in mind also that the administration of the estate needs to happen efficiently and at minimal cost because of its small size (which is valued at no more than $70,000), and commencement through originating application best achieves that outcome.

Application for appointment as administrator

[7]                 Under s 6(2) of the Administration Act, where there are “special circumstances”, the court has a broad discretion to grant administration to any person

1      See Solar Bright Ltd v Martin [2019] NZHC 300 at [20]–[24].

2      Hong Kong and Shanghai Banking Corporation Ltd v Erceg (2010) 20 PRNZ 652 (HC) at [22]– [26].

or persons “as it thinks expedient”, even if some other person is appointed as executor or would otherwise be entitled to a grant of administration. The principles that apply to the exercise of that discretion are as follows:3

(a)The starting point is the Court’s duty to see estates properly administered and trusts properly executed.

(b)The jurisdiction involves a large discretion which is heavily fact- dependent.

(c)The wishes of the testator/settlor (evidenced by the appointment of a particular executor or trustee) are to be given consideration, but ultimately the question is what is expedient in the interests of the beneficiaries.

(d)Expedience is a lower threshold than necessity, and imports considerations of suitability, practicality and efficiency. Misconduct, breach of trust, dishonesty, or unfitness need not be established.

(e)Hostility as between administrators/trustees and beneficiaries is not of itself a reason for removal, but hostility will assume relevance if and when it risks prejudicing the interests of the beneficiaries.

[8]                 In this case, the named executor is incapable of acting and alternative executors are necessary. The applicants are members of the deceased’s family and are suitable for appointment. Their appointment is generally supported by the whānau.

[9]                 Consent to the applicants’ appointment has not been given by one sibling, Ian. Ian wishes to resolve his claim to the parents’ former home (owned by a family trust) before letters of administration are sought. He has been offered opportunities to participate in the appointment of an administrator but has not taken up those opportunities. Nor has he responded to the current application. This issue does not need to be resolved for an administrator to be appointed. There is no application by any other person.

[10]              As above, the small size of the estate necessitates the administration occurring with efficiency and minimal cost. In addition, there is also a need for funds to contribute to Mrs Hamilton’s care.

3      Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145 at [22]; citing with approval Farquhar v Nunns

[2013] NZHC 1670 at [13].

[11]              As explained above, it is also the case that Mrs Hamilton appointed the applicants as her attorneys for property under an enduring power of attorney, pursuant to s 9A of the Administration Act. When there is some uncertainty about the legal status of the enduring power of attorney, appointment as administrators under s 6(2) is appropriate as it will give effect to Mrs Hamilton’s intention to appoint the applicants as her attorneys.

Costs

[12]              I also consider it appropriate that the reasonable costs associated with this application are to be payable from the estate of Mr Hamilton. The application has been brought reasonably, and the costs have been honestly incurred.4

Orders

[13]I make the following orders as sought:

(a)Leave is granted for the proceeding to be commenced by way of originating application.

(b)The application by Shane Cuthbert and Fiona Catherine Mouat for their appointment as administrators is granted under s 6(2) of the Administration Act 1969.

(c)The applicants’ costs relating to this proceeding are to be paid from the estate.

Grau J

Solicitors:

Palmer Theron Solicitors, Auckland for Applicants

4      Administration Act 1969, s 26; Rijn v Ryn (No 3) [2023] NZHC 2414 at [9]; and Re Beddoe [1892] 1 Ch 547 at 562.