Laery v Grout - [2014] NZHC 1881

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-485-002817 [2014] NZHC 1881

IN THE MATTER OF RENA FRANCES MANSON, deceased

UNDER

The Wills Act 2007, the Law Reform (Testamentary Promises) Act 1949 and Part 18 of the High Court Rules

BETWEEN

DESMOND PHILLIP LAERY & SIMON CHARLES DAVID WEIL

Applicants

AND

JENNIFER KAY GROUT First Respondent

SARAH KAY GROUT Second Respondent

MARJORY HAMLIN (also known as

Marjory Vinet) Third Respondent

Hearing: 30 July 2014

Appearances:

S Clapham for Plaintiffs
V Bruton for First Respondent
S Jefferson QC for Second Respondent
D Watson for Third Respondent

Judgment:

30 July 2014

Reasons:

11 August 2014

JUDGMENT OF WOOLFORD J

[Re Appointment of Temporary Administrator]

This judgment was delivered by me on Monday, 11 August 2014 at 12.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

LAERY & Anor v GROUT & Ors [2014] NZHC 1881 [30 July 2014]

Introduction

[1] This is an application by the first respondent to appoint a temporary administrator for the estate of the late Rena Frances Manson (the deceased). The plaintiffs (Desmond Phillip Leary and Simon David Charles Weil) are the named executors under a will executed by the deceased on 22 May 2007 (the 2007 will). Shortly before her death in October 2013, the deceased gave instructions for a new will. She died prior to executing that will. The plaintiffs seek a declaration, under s 14 of the Wills Act 2007 (the Act), validating a 2013 document containing instructed changes to the 2007 will (the 2013 document) as the valid will of the deceased.

[2] The first respondent (Jennifer Kay Grout) opposes the application. She is the primary beneficiary under the 2007 will and her view is that the 2007 will is the valid will of the deceased. She has also counter-claimed, seeking an interpretation of a clause in the 2007 will, rectification of the 2007 will, and, in the event that the
2013 document is validated under s 14 of the Act, a claim under the Law Reform

(Testamentary Promises) Act 1949.

Temporary Administrator

[3] The first respondent now makes an application for an order appointing Mr William Malcolm Patterson of Auckland, Solicitor, as the temporary administrator of the deceased’s estate under s 7 of the Administration Act 1969, subject to the immediate control of the Court and acting under its direction until he is discharged or removed under s 21.

[4] The grounds on which the order is sought is that there are now legal proceedings touching the validity of the will of the deceased and it is therefore necessary for an independent temporary administrator to be appointed. Mr Patterson is an expert in estate administration and consents to his appointment. The first respondent submits that the plaintiffs should not be appointed as temporary administrators as they are not independent and have various conflicts of interest, including the fact that Mr Laery’s wife and children are named as beneficiaries in the estate.

[5] The plaintiffs oppose the application for…

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 Laery v Grout

Details

AGLC: Laery v Grout [2014] NZHC 1881
Case: [2014] NZHC 1881
Decision Date: 30 July 2014

CaseChat Overview and Summary

This case involved an application by Jennifer Kay Grout, the primary beneficiary under the 2007 will of the deceased, for the appointment of a temporary administrator for the estate of Rena Frances Manson. The plaintiffs, Desmond Phillip Laery and Simon David Charles Weil, the named executors under the 2007 will, sought a declaration validating a 2013 document containing instructed changes to the 2007 will as the valid will of the deceased. The first respondent opposed the application, asserting that the 2007 will was the valid will of the deceased. The key legal issue was whether the plaintiffs or Mr William Malcolm Patterson, a solicitor proposed by the first respondent, should be appointed as the temporary administrator of the deceased's estate.

The court considered the discretion provided by Section 7 of the Administration Act 1969, which allows the court to appoint a temporary administrator where there are legal proceedings touching the validity of the will. The court weighed the submissions of both parties, taking into account the potential costs and the appearance of independence. The court found that, despite the plaintiffs' familiarity with the deceased's affairs and their cost-effectiveness argument, the appearance of independence was crucial for the confidence of family members and beneficiaries in the process of estate administration. The court also highlighted the importance of impartiality, especially given the level of distrust felt by the first respondent towards the plaintiffs.

Accordingly, the court ordered that William Malcolm Patterson be appointed as the temporary administrator of the deceased's estate, subject to the immediate control of the Court and acting under its direction until he is discharged or removed under Section 21 of the Administration Act 1969. The temporary administrator was to have all the rights and powers of a general administrator, other than the right of distributing the balance of the deceased's estate remaining after payment of debts, funerals, and testamentary expenses, duties, and fees. The court also authorized payment to the temporary administrator in accordance with his usual charge-out rate and directed that he be served with all documents in the proceedings.

Orders