Pentland v Pentland
[2022] NZHC 186
•15 February 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-604225
[2022] NZHC 186
UNDER the Administration Act 1969 IN THE MATTER OF
an application to set aside letters of administrations
BETWEEN
JODIE AROHA PENTLAND
Applicant
AND
JOHN JAMES PENTLAND
Respondent
Hearing: 9 November 2021 Appearances:
V McGoldrick for Applicant (VMR)
G S McCardle and A Modgill for Respondent
Judgment:
15 February 2022
JUDGMENT OF EATON J
This judgment was delivered by me on at pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
PENTLAND v PENTLAND [2022] NZHC 186 [15 February 2022]
Introduction
[1] Michelle Beverley Pentland (Michelle) died without a will on 21 January 2021. Her death certificate records her father was James Robert Charles Pentland (James) and her mother was Beverley Pentland.
[2] On 26 March 2021 the respondent, John James Pentland (John),1 applied to this Court for a grant of letters of administration. In a supporting affidavit, John said he was a brother of Michelle who was not survived by a parent or by any other brother or sister. John and Michelle had the same mother, Beverley. They did not have the same father. On 14 April 2021, John was granted letters of administration.
[3] On about 27 May 2021 Jodie Aroha Pentland (Jodie), applied to this Court for a grant of letters of administration of Michelle’s estate. In a supporting affidavit, Jodie deposed she was a sister of Michelle who was not survived by a parent but was survived by three siblings, being herself, John and Ian Te Kooti Pentland (Ian). Jodie and Ian have the same father, James. Ian consented to Jodie’s application.
[4] On 26 July 2021 this Court notified Jodie of the order made on 14 April 2021 in favour of John. She promptly sought legal advice and an explanation from John.
[5] John says Jodie and Ian were not half-blood siblings of Michelle. He says Michelle told him about steps she had taken to trace her birth father including her engagement with ancestry.com that revealed DNA results that lead Michelle to believe her father was not James but a man named David Hughes, living in Australia.
[6] Jodie and Ian say they have always believed they had the same father, James, as Michelle. He is named as Michelle’s father in her death certificate.
The application
[7] On 16 August 2021 Jodie filed an application for an order setting aside the grant of letters of administration made to John. That application alleges fraud and in
1 The respondent, John James Pentland is known as Jamie. I will nevertheless refer to him as John and James Robert Charles Pentland as James.
particular says John made an untruthful assertion that (other than himself): “the deceased was not survived by any other brother or sister”.
[8] Ian supports Jodie’s application. Jodie seeks a further order that she be granted letters of administration and ancillary orders that John make financial disclosures and return all estate assets.
The estate
[9] John was directed to file an affidavit by 20 September 2021 addressing the financial position of the estate and producing copies of his own bank statements to evidence how funds have been dissipated. He failed to do so. At the hearing I directed John to file that evidence within five working days. In an affidavit dated 12 November 2021, John attached bank statements recording receipt on 21 May 2021 of the sum of
$18,600.68 from BMC Lawyers Ltd, being “Pentland Estfunds to Administrator”, his subsequent disposition of those funds and a further and final estate distribution of
$3,360.70 received by him on 18 June 2021. He says all estate funds received had been spent prior to 20 September 2021.2
[10] The estate was modest. The sum of $26,463.67 had been held in a KiwiSaver account. The balance of the estate was made up of household items, low value motor vehicles, jewellery and pounamu. None of those items have been valued. Michelle also held a Cigna credit card clearance policy. A payment of $3,035.59 was paid to BNZ and credited to Michelle’s credit card in settlement of a claim on the Cigna policy.
[11] On 24 May 2021, John made a donation of $1,000 to the North Haven Hospice who had provided care to Michelle in the period leading to her death. John does not claim to have incurred any other expenditure in administering the estate.
[12] Jodie says she incurred expenses totalling $10,048.58 for a variety of costs related to Michelle’s death including funeral arrangements. She received the sum of
$6,383.34 behalf of the estate, being payments made by Michelle’s former employer the Department of Corrections, and monies recouped from the sale of vehicles and on
2 The date of a case management conference when he advised all estate funds had been spent.
Michelle’s household belongings. Jodie says she borrowed money from family to meet the shortfall.
[13] John and Jodie are at loggerheads as to the value of Michelle’s jewellery and pounamu and as to the koha received at Michelle’s funeral.
The core dispute – Michelle’s father?
[14] Jodie and Ian have always believed they were half-siblings to Michelle. James is recorded as the father on each of their birth certificates. Jodie assumed the responsibility for arranging Michelle’s funeral and administering her estate and incurred cost in doing so.
[15] John says Michelle had told him that in late 2018 she had, through ancestry.com, discovered her father was not James but David Hughes and that she had half-siblings and cousins on the Hughes side of the family (the Hughes connection). John does not believe Jodie and Ian are related to Michelle.
[16] Jodie, supported by Ian, says the ancestry.com records are inadmissible but, in any event, cannot override the birth and death certificates that record they have the same father as Michelle. They say John gave false evidence in asserting he was Michelle’s sole surviving sibling. They seek his removal as the administrator of Michelle’s estate.
[17] It is clear from the affidavits that the relationship between John and Jodie has broken down. The affidavits are riddled with allegations and counter allegations. The evidence does not, and neither is it necessary to, resolve those conflicts. Suffice to say, having regard to the value of Michelle’s estate, there seems to be a loss of perspective.
Setting aside appointment as administrator – the law
[18] Section 21(1) of the Administration Act 1969 provides the Court may discharge or remove an administrator:
21 Discharge or removal of administrator
Where an administrator is absent from New Zealand for 12 months without leaving a lawful attorney, or desires to be discharged from the office of administrator, or becomes incapable of acting as administrator or unfit to so act, or where it becomes expedient to discharge or remove an administrator, the court may discharge or remove that administrator, and may if it thinks fit appoint any person to be administrator in his or her place, on such terms and conditions in all respects as the court thinks fit.
[19] In Farquhar v Nunns, Heath J stated the principles that should guide a Court dealing with an application under s 21 to remove an administrator.3 The Court of Appeal has since adopted those principles and summarised them as follows:4
(a)the starting point is the Court’s duty to see estates properly administered and trusts properly executed.
(b)this jurisdiction involves a large discretion which is heavily fact- dependant.
(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 as to 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.
[20] In Deng v Ye,5 Palmer J adopted the finding of Associate Judge Matthews in Lee v Archer,6 that the Court has jurisdiction independent of s 21 to recall the grant of letters of administration “on the basis of a false suggestion, if established”. In Lee v Archer, the administrator had sworn an affidavit which was found to be false in a material respect: the affidavit stated the deceased was not in a de facto relationship when he was.
[21] Associate Judge Matthews issued summary judgment recalling a grant of letters of administration. The Judge found “the Court [had] been led (even if unintentionally) into making an order which it would not have made had the position,
3 Farquhar v Nunns [2013] NZHC 1670 at [13].
4 Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145 at [22]; and Frickleton v Frickleton
[2016] NZCA 408, [2017] 2 NZLR 154 at [29].
5 Deng v Ye [2018] NZHC 391, [2018] NZAR 560 at [27].
6 Lee v Archer [2012] NZHC 3308 at [14].
now established, been known to it at the time”.7 In declining to stay enforcement of that judgment the Judge observed the affidavit was “[a]t the very least… carelessly made”8. The Judge stated:9
There is in my view an element of public interest in this case, the protection of [the Court’s] due processes from the consequences of the provision of false information, on which its officers will rely. Ms Lee has taken proceedings to establish that position and in my opinion the Court should be slow to accede to leaving in place the decision made by this Court on the basis of Ms Archer’s false statement.
[22] In Deng v Ye, Palmer J granted the application to recall Ms Ye’s appointment as administrator of Mr Jun Xie. Ms Ye had applied without notice for letters of administration at a time she knew, but did not advise the Court, that Mr Xie’s capacity to marry Ms Ye had been disputed in a Chinese court by Ms Deng. Palmer granted the recall application on the basis of the public interest in ensuring the integrity of the Court’s processes in making such a grant.
Factual Background
Michelle’s father
[23] Michelle was born on 8 December 1963 in Lower Hutt. She died on 21 January 2021 in Whangārei. Her death certificate records that her mother was Beverley Pentland and her father was James.
[24] Beverley is the mother of both Michelle and John. They do not have the same father. John and Michelle were raised by their mother, Beverley, after Beverley and James separated in 1965.
[25] James then married Ruth Henare and moved back to the United Kingdom where Jodie was born. John deposes that James did not pay child support or provide financial support to Michelle throughout her life.
7 Lee v Archer, above n 6, at [66].
8 Lee v Archer , [2012] NZHC 3551 at [24]
9 Lee v Archer, above n 8, at [26]
[26] John says there was very limited contact between Michelle and James over the following 35 years and James made no provision for Michelle in his will when he died in 2009.
[27] John has deposed to a conversation with James in the UK in 1986 when John was told that Beverley had sent James a letter in 1984 telling James he was not Michelle’s blood father. John says Michelle had told him she was aware of the letter.
[28] John became aware from late 2018 that Michelle had been taking steps to trace her blood father. He learnt Michelle had a “DNA test through ancestry.com” on 3 November 2018. He says that through this process Michelle was able to locate a number of close relatives, including a paternal half-brother, Damien Hughes, a paternal half-sister, Elizabeth Hughes, a paternal aunt, Beth Lawson, and a first- cousin, Craig Hughes. She also made contact with David Hughes, who John describes as Michelle’s blood father. John has produced records from ancestry.com that he says confirm those relationships.
[29] John says during 2019 and 2020 Michelle kept him up to date with her discovery of and connection with the Hughes family. Michelle told John that David Hughes and her mother, Beverley, had an on-and-off again affair for over a year and that Beverley became pregnant in 1963 with Michelle. Beverley is said to have told David Hughes that he was the father but before a paternity test was completed Beverley married James.
[30] John says he and Michelle discussed her first meeting with David Hughes and how she “giggled as she described his rather short stature and her surprise at being Irish”. He has deposed Michelle told him other members of the Hughes family were in regular Facebook and telephone communication with Michelle. John describes Michelle being happy and at peace that she had found her paternal family.
[31] Jodie has a different recollection of the family history. She says her mother, Ruth, told her that James did pay child support for Michelle. Further, she says her mother told her that, whilst James’ will did leave everything to Ruth, he had directed that in the event she did not survive him, his estate was to be shared between Jodie,
Ian, John and Michelle, being his four children. Her recollection is that after James and Beverley separated in 1965, there was an agreement whereby Michelle, then aged about one and a half to two years, would spend every Sunday with James and that those visits continued until James commenced a relationship with Jodie’s mother, Ruth, in late 1969. Jodie disputes John’s evidence as to the number of visits over the following 35 years.
[32] Jodie deposes that Michelle had never mentioned anything to her about having a different father. She was unaware of any steps Michelle might have taken with ancestry.com. She says she had never heard of David Hughes until a memorandum was filed by John’s lawyer dated 5 October 2021. Jodie’s brother, Ian has deposed that Michelle was his sister.
[33] John says he had discussions with both Jodie and her mother, Ruth, about David Hughes and deposes that Jodie knew about the Hughes family well prior to the memorandum of 5 October 2021.
[34] Craig Hughes has deposed that he is David Hughes’s nephew and Michelle’s cousin. He says David lived in Wellington in the early 1960s and has lived most of his life in Australia. Craig lives in New Zealand. He deposes that he was contacted by Michelle through ancestry.com on 4 February 2019. He refers to a long conversation he had with Michelle on 8 February 2019 as he drove from Wellington to Auckland. During that conversation Michelle told him about her efforts to contact a half-brother, Damien Hughes, through ancestry.com, leading her to make contact with Craig as the next closest Hughes family DNA match.
[35] Craig deposes as to the events of 14 January 2020 when David Hughes, having travelled to New Zealand from Australia to meet Michelle, spent the day of his 80th birthday with Michelle and his other daughter. Craig produces photographs of himself, David, Michelle and David’s other daughter, taken by a waitress at a café in Manukau. He describes his uncle introducing Michelle as a daughter and Michelle telling him she was very happy to finally meet her biological father, David Hughes.
Other children
[36] James had another child named Yvette Keane. John deposes that Jodie knew about Yvette but has failed to mention her in her application for letters of administration. Jodie says she knew about Yvette through Michelle, who had told her she was exploring whether she had another half-sister.
[37] Jodie also deposes she made enquiries with older family members as to whether there was anyone else on Michelle’s mother’s side who might be a sibling. She discovered that Michelle had a half-sister (same mother, different father) named Geraldine Hilary. She believes that Geraldine was adopted out as a baby. She says Michelle never mentioned Geraldine, but Jodie believes John was aware of Geraldine and says he had brought Geraldine to Jodie’s house on an occasion in December 2016.
[38] Neither the application for a grant of letters of administration or the current application to remove John as the administrator have been served on those said to be related to Michelle through the Hughes connection or on Yvette and Geraldine.
The funeral
[39] Jodie says she arrived in Whāngarei with her husband and daughter on the day Michelle died. She says that, at the funeral, she reached agreement with both Ian and John that she would be the administrator of Michelle’s estate. This was because she had been taking care of funeral preparations and expenses, sorting Michelle’s belongings, cleaning up her rental property, arranging the sale of her two unregistered and unwarranted vehicles and sorting her animals.
[40] She says all decisions regarding funeral arrangements and disposal of Michelle’s belongings were made jointly. She deposes Michelle told her she wished to be buried by their father, James, in Wairoa. Jodie says she told both Ian and John about Michelle’s wishes.
[41] Jodie produced a record of expenses she incurred on behalf of Michelle’s estate. Those total $10,048.58. The spreadsheet also recorded the sum of $6,383.34, being monies received from Michelle’s former employer, the sale of vehicles and the
sale of household belongings. She says John was aware that she was taking responsibility for paying these estate accounts. John says he had no such knowledge but that he let Jodie take control of such matters as it was one less strain for him to deal with. He says that at the funeral, a koha of approximately $11,000, including
$5,000 to $7,000 cash, was collected by Jodie and he believes that the majority of the receipts listed by Jodie were paid for by koha. John says he saw Jodie with a shoulder bag “stuffed with cash”. Jodie estimates that the total koha was no more than $1,200 cash.
[42] John deposes Jodie sold Michelle’s assets without permission or authority and disputes the values asserted by Jodie. He says Jodie took control of both the jewellery and Michelle’s extensive and valuable pounamu collection and he estimates the value of Michelle’s family jewellery to be $50,000.
[43] John says Jodie took Michelle’s mobile phone and would not let him have access to it. He accuses Jodie of logging into Michelle’s email and Facebook accounts and trying to erase the existence of the Hughes family.
[44] John disputes that Michelle told Jodie she wanted to be buried by her father in Wairoa. He has produced an email from Carole Clark who was a friend of Michelle’s and a worker at the North Haven Hospice. In that email Ms Clark says she was present and held the phone to Michelle’s ear as Michelle spoke with Jodie. She recalls Jodie asking Michelle if she wanted to be at rest with her father. Ms Clark’s email records that Michelle responded with groans taken to be agreement. Ms Clark did not think Michelle was able to comprehend the question.
[45] As is plain, there is significant conflict between Jodie and John both as to Jodie’s knowledge of any steps taken by Michelle to trace her birth father and in relation to the dealings with and value of Michelle’s estate.
Who was to administer?
[46] Jodie says it was agreed between her, John and Ian that she would administer Michelle’s estate. Ian has deposed that he was with Jodie and John a few days after
Michelle’s death when it was agreed Jodie would do so. John denies any such agreement.
[47] John made a without notice application for a grant of letters of administration on 26 March 2021. He did not give notice to Jodie or Ian of his intention to apply. He says he did not do so because they were not blood siblings of Michelle.
[48] On 29 March 2021, Jodie’s lawyer emailed John advising that Jodie was intending to apply for letters of administration and attaching a statement of consent. John did not respond. In the meantime, Ian had signed his consent to Jodie’s application. On 27 May 2021, Jodie filed an application without notice for letters of administration. That application annexed Ian’s consent and recorded that she had not heard from John.
[49] On 26 July 2021 the Registrar advised Jodie that a grant had been made in favour of John. Jodie’s lawyers immediately wrote to John’s lawyers, expressing concern that John had filed an affidavit deposing that Michelle had not been survived by any other brother or sister. John replied by way of email dated 2 August 2021, stating “Jodie & Ian’s father [James] isn’t the biological father of Michelle”.
[50] On 16 August 2021, Jodie made the present application to set aside the grant of letters of administration made to John
Submissions on behalf of Jodie
[51] On behalf of Jodie, Ms McGoldrick objects to the admissibility of the DNA evidence, the evidence of Craig Hughes and the Clark email.
[52] The DNA evidence is said to have no probative value to the issue in dispute because the ancestry.com website contains a disclaimer that results of DNA testing are not conclusive and cannot be used in legal proceedings due to the inability to verify the identity of the person providing the DNA sample, there being no chain of custody for the DNA evidence.
[53] Further, it is argued that the evidence was obtained in contravention of a direction given by Grice J on 20 September 2021, which prohibited John from taking steps in the administration of Michelle’s estate, including doing anything whatsoever in reliance on the authority as administrator of her estate.
[54] Objection is taken to Craig Hughes’ evidence on the grounds it is hearsay. The Clark email is said to include opinion.
[55] On the substantive issue, Ms McGoldrick submits that John committed fraud in deposing in an affidavit dated 15 March 2021 that “the deceased was not survived by any other brother or sister”. To support the allegation of fraud Ms McGoldrick points to the birth certificates of Jodie and Ian, and the death certificate of Michelle, all recording that their father was James.
[56] Ms McGoldrick submits John’s response that Michelle’s father is David Hughes and that she is survived by half-blood siblings, Damien and Elizabeth Hughes, does not assist him as he deliberately failed to disclose their relationship with Michelle in his without notice application. Paragraph [7] of John’s affidavit of 15 March states “the deceased was not survived by a parent”.
[57] Ms McGoldrick describes the circumstances as analogous to those in Lee v Archer.10 She highlights the public interest in protecting the Court’s due processes from the consequences of the provision of false information on which the Court’s officers will rely. Ms McGoldrick submits that the obligations on an applicant in a without notice application ought to be subject to even greater scrutiny when the applicant would personally gain from making false statements at the expense of beneficiaries otherwise entitled to a share in the estate.
[58] Ms McGoldrick submits John breached r 7.23 of the High Court Rules 2016 by failing to make full disclosure in a without notice application.
10 Lee v Archer, above n 6.
[59] Ms McGoldrick argues the starting point is the Court’s duty to ensure estates are properly administered and trusts properly executed. She relies on the Court of Appeal decision of Frickleton v Frickleton11 as to the guiding principles.
[60] Ms McGoldrick submits the evidence establishes John failed to act as a prudent executor in that he left Jodie to meet funeral expenses, failed to give notice of his intention to apply for a grant of administration and has made no attempt to assess what estate expenses were incurred by Jodie in order for her to be reimbursed on behalf of the estate. Ms McGoldrick also relies on John’s failure to comply with a direction of this Court to file financial evidence.
[61] It is submitted the evidence demonstrates John has acted improperly and is not fit to act as the administrator. Ms McGoldrick seeks an order appointing Jodie as the administrator.
Submissions on behalf of John
[62] Mr McCardle submits the ancestry.com DNA evidence is admissible to answer the allegation of fraud and to establish John’s state of mind when he made the 26 March 2021 application. In oral argument he submitted the DNA evidence was not offered to prove paternity.
[63] He submits the DNA evidence was not obtained by John in breach of a court order. The date stamp relied on by Jodie to suggest otherwise is not the date the records were accessed but the date John transmitted the file by email.
[64] In relation to Mr Craig Hughes, Mr McCardle submits evidence of conversations with Michelle was not inadmissible hearsay. Michelle is unavailable and the circumstances in which the conversations took place provide an assurance as to reliability.
[65] As regards the substantive issue, Mr McCardle submits John’s failure to disclose that Michelle had traced her blood father and two half-blood siblings in
11 Frickleton v Frickleton, above n 4.
Australia was merely inadvertence. He submits John had no intention to mislead the Court and that John now proposed to contact Australian relatives and obtain “a written agreement as to how the estate should be distributed”. Mr McCardle says John will comply with any terms imposed by the Court in respect of a distribution to the Hughes connections.
[66] It is submitted John reasonably concluded, based on the ancestry.com DNA results and his conversations with Michelle, that Jodie and Ian were not half-siblings to Michelle.
[67] Mr McCardle submitted there were serious discrepancies as regards the receipt and expenditure of monies at the hands of Jodie during and immediately following the funeral.
[68] It was submitted Jodie had no standing to be appointed as administrator or to bring the application to set aside the grant because she is not a biological sibling of Michelle.
Evidence admissibility objection
[69] I will deal firstly with the objections to the admissibility of the DNA records and reports produced by ancestry.com, the affidavit evidence of Craig Hughes and the Carole Clark email.
The DNA evidence
[70]In an affidavit of 18 October 2021 John deposes:
On the 3rd of November 2018 Michelle had a DNA test through ancestry.com in an effort to find her blood father. It was an autosomal DNA test which covers the maternal and paternal sides of a family. Her DNA results number 12,554 pages. Through this process she was able to locate a number of close relatives including her paternal half-brother Damien, her paternal half-sister, Elizabeth Hughes, her paternal aunt, Beth Lawson, and 1st Cousin Craig Hughes. Through these matches she was able to contact her blood father David Hughes who lives in Australia …
[71] Annexed to John’s affidavit were screenshots from ancestry.com recording the DNA links.
[72] Ms McGoldrick submits this evidence it is not probative of an issue in the proceeding as it cannot be used to prove paternity. Ms McGoldrick alternatively submits that the ancestry.com evidence was obtained by John on 27 September 2021 in contravention of an earlier direction of Grice J on 20 September 2020 prohibiting John from taking further action in the administration of Michelle’s estate “including accessing of any of her electronic files, media or anything whatsoever relying on the authority as administrator of her estate until further order of this Court”. Ms McCardle points to a date stamp on the DNA records to support this submission. Finally, Ms McGoldrick points to the absence of any chain of custody evidence in relation to any DNA samples sent to ancestry.com.
[73] I can deal with this objection briefly. I do not accept the arguments advanced on behalf of the applicant. The DNA evidence is not being offered in this proceeding to prove paternity. Rather, it is offered in response to the allegation of fraud. John must be entitled to explain why he deposed he was the only living blood relative of Michelle. The DNA evidence is relevant to his state of mind. That is the purpose for which it has been offered. His state of mind is in issue. The allegation of fraud raises questions of knowledge and intent. The ancestory.com evidence is not a hearsay statement. It is not offered to prove the truth of its content. Any chain of custody argument falls away once the purpose of admitting the evidence is identified.
[74] John denies that he accessed the DNA records in contravention of the order of this Court. He says the date recorded on the bottom right hand corner of the DNA records is the date he created an electronic copy of that material to allow him to transmit it via email. On my review of the records that explanation is reasonable. The date appears at the end of what appears to be a tool bar consistent with John’s explanation.
Evidence of Craig Hughes (Craig)
[75] Ms McGoldrick submits the Craig Hughes evidence is inadmissible hearsay. There is no doubt Craig Hughes is referring directly to conversations he had with
Michelle, and inferentially to conversations with David Hughes. She points out that there is no evidence from David Hughes who is said to have been present on the 14 January 2020 meeting. Ms McGoldrick submits there is no evidence that David Hughes is unavailable. Plainly Michelle is unavailable.
[76] As a standalone objection to the Craig Hughes evidence, Ms McGoldrick submits that any evidence obtained after 15 March 2021 when John’s application for a grant of letters of administration was filed, is inadmissible as John should not be permitted to retrospectively gather evidence to justify the evidence filed in support of his application.
[77]Section 18 of the Evidence Act 2006 provides as follows:
18 General admissibility of hearsay
(1)A hearsay statement is admissible in any proceeding if—
(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b)either—
(i)the maker of the statement is unavailable as a witness; or
(ii)the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
(2)This section is subject to sections 20 and 22.
[78] Under s 16(2) of the Evidence Act 2006 a person is unavailable as a witness if the person:
(i)is dead; or
(ii)is outside New Zealand and it is not reasonably practicable for him or her to be a witness; or
(iii)is unfit to be a witness because of age or physical or mental condition;
[79] There is no serious challenge as to whether the circumstances in which the hearsay statements were made provide assurances as to reliability. It has been established that Michelle had contacted ancestry.com leading her to make contact with
the Hughes family. I am satisfied she was making genuine enquiries as to paternity. I am further satisfied the circumstances in which the disputed statements are said to have been made, being conversations with members of the Hughes family associated with paternity, provide a reasonable assurance that the statements were reliable.
[80] The only issue is whether the maker of the disputed statements is either unavailable as a witness or undue expense or delay would be caused if that person were required to be a witness.
[81] Michelle is unavailable and it follows that statements she is alleged to have made to Craig are admissible.
[82] David Hughes is resident in Australia. He is 81 years old. I am told by Mr McCardle that he is in poor health. Mr McCardle submits that David Hughes is unavailable or, alternatively, that undue expense or delay would be caused if he were required to be a witness.12
[83] No evidence has been offered as to the fitness of Mr Hughes to be a witness. John has produced photos of Mr Hughes said to be taken in January 2020 on a visit to New Zealand. Those photos do not support the submission he is unfit to be a witness. Modern technology and alternative modes of evidence stand in the way of a finding Mr Hughes is unavailable merely because he is resident in Australia.
[84] What of undue expense or delay? It is important to have regard to context in considering undue expense or delay. Michelle’s estate is valued at about $30,000. What might be considered a reasonable expense in one case could well be seen as undue in the context of this case.
[85]In my view, the only contentious evidence in Craig’s affidavit is:
5.David Hughes travelled to New Zealand from Australia to meet with his daughter Michelle in January 2020 ... He spent the day of his 80th birthday with Michelle and his other daughter …
6.During this visit I met Michelle for the first time and she was introduced by my uncle David Hughes as his daughter.
12 To give evidence and be cross-examined.
[86] The first paragraph is not objectionable hearsay. It is objectionable because it engages speculation or opinion. Whilst there is no doubt that David Hughes was in New Zealand in January 2020 and that he did, on 14 January 2020, meet with Michelle (direct evidence from Craig who was an eyewitness), there is no admissible evidence that his meeting with Michelle was the purpose of his trip to New Zealand or that he indeed spent the entire day with Michelle.
[87] I agree the “daughter” reference in the second paragraph is a hearsay statement. The evidence is offered to prove David Hughes believed Michelle was his daughter. I am not able to find David Hughes is unavailable to be a witness and the evidence is therefore inadmissible.
[88] I do not consider these objections take matters very far. Craig Hughes has deposed that Michelle told him during that visit she was very happy to finally meet her biological father, David Hughes. I have found that evidence to be admissible.
[89] Ms McGoldrick is right that the evidence of Craig Hughes was not known to John when he swore the disputed affidavit. It follows that evidence is not relevant to the allegation of fraud. However, in my view, the evidence is relevant to Jodie’s application for letters of administration. It is evidence that tends to support the allegation that David Hughes and not James was Michelle’s father. If that is the case, then Jodie does not have standing to bring her application.
[90] I find Craig’s evidence is admissible other than the reference to David Hughes introducing Michelle to Craig as his daughter.
Carole Clark email
[91] Ms McGoldrick also challenges the admissibility of the Carole Clark email. Ms Clark emailed John on 26 September 2021 “to confirm my experience and all personal knowledge regarding the illness and passing of Michelle Pentland”.
[92] The email is offered as evidence as an exhibit to John’s affidavit of 18 October 2021. The email is a hearsay statement. It also records Ms Clark’s opinion as to
Michelle’s level of comprehension when Michelle spoke with Jodie shortly before her death. There is no suggestion Ms Clark is unavailable. The Clark email is inadmissible.
Analysis
[93] John challenges Jodie’s standing to bring this application. I am satisfied the birth and death certificates provide a proper foundation for Jodie to apply to revoke the grant made to John.
[94] There are many factual contests in this case. The critical issue as to paternity is not capable of determination on the evidence before me. However, the evidence does satisfy me that Michelle had been making enquiries as to her paternity. Through ancestry.com she had met the Hughes family. She believed David Hughes was her birth father and that she had half-siblings and cousins in Australia and a cousin, Craig Hughes, in New Zealand.
[95] I accept Michelle had told John that she had made paternity enquiries. In my view, John had no reason not to accept what he was told. It was reasonable for him to form the view that James was not Michelle’s father based on what Michelle told John and on the ancestry.com records.
[96] I find that neither Jodie or Ian knew anything of Michelle’s paternity concerns or enquiries prior to Michelle’s death and at all times genuinely believed they were Michelle’s half-siblings. In my view they have acted appropriately throughout and in a manner consistent with their life-long belief as to their relationship with Michelle.
[97] When Michelle died, it was Jodie who assumed the responsibility of making the funeral arrangements and administering her estate. She did so with John’s blessing.
[98] In those circumstances it was inevitable Jodie would make an application to this Court for a grant of letters of administration. That must have been clear to John. Notwithstanding he elected to make that application and to do so without notice to
Jodie and Ian. In his supporting affidavit he made a conscious decision not to alert the Court to the paternity issue. Rather, he resolved to determine matters himself.
[99] Ms McGoldrick submits that John’s without notice application for a grant of administration failed to comply with r 7.23 of the High Court Rules requiring an applicant to make disclosure of any known grounds of opposition or defence that another party might rely upon. It is submitted John failed to disclose important facts relevant to the application for a grant of administration.
[100]However, r 7.23(5) provides:
This rule does not apply to an application for a grant of administration without notice (see rule 27.4).
[101]Nevertheless, the disclosure failures are significant albeit in a broader inquiry.
[102] Ultimately this application is determined by consideration of the public interest in ensuring the integrity of the Court’s process. John applied without notice for a grant of administration. His application was silent as to Michelle’s life-long sibling relationship with Jodie and Ian. He failed to disclose his belief that David Hughes was Michelle’s father and that Elizabeth and Damien were her half-blood siblings. Instead he said, “The deceased was not survived by a parent…The deceased was not survived by any other brother or sister.” He knew each of those statements was either untrue or strongly disputed.
[103] Before an order was made in John’s favour, he was notified of Jodie’s intention to apply for a grant of administration. John’s consent was sought for that application. He failed to respond to Jodie or notify this Court of Jodie’s interest. He inexcusably ignored the directions made by Grice J on 20 September 2021 to file financial evidence pertaining to the estate.13
[104] John’s affidavit was misleading and, at the very least, grossly careless. He should have alerted the Court to the records (birth and death certificates) and to the relevant factual history indicating Jodie and Ian were half-siblings. I do not accept
13 Notwithstanding para 15 of his PR6 affidavit of 15 March 2021.
inadvertence is a plausible explanation for the failure to refer to the Hughes connection. In the same affidavit, John made a conscious and deliberate decision to omit reference to Jodie and Ian.
[105] Over and above the serious shortcomings in his affidavit I find John has failed to act as a prudent and responsible administrator. John knew Jodie had assumed the role of administering Michelle’s estate but took no steps to quantify the costs she incurred or the monies she received in that role. He says there is a dispute as to the monies received and costs incurred by Jodie yet he has taken no steps to resolve that issue. He failed to comply with the direction of Grice J to file essential evidence as to the financial affairs of the estate.
[106] Whilst I do not find that John acted fraudulently in the sense of knowingly giving false evidence, I do find his conduct overall falls well short of the standard this Court expects of an applicant for a grant of letters of administration.
[107] In those circumstances I have little difficulty finding he is unsuitable to act as the administrator. But that does not provide the final answer as to whether he should be removed.
[108] In a case involving such a modest estate and with an issue as critical as paternity yet to be resolved, I do step back and ask whether it is nevertheless expedient in the interests of the beneficiaries to remove John as administrator. I find this issue more finely balanced because a decision to remove John does not significantly advance the stalemate in the administration of Michelle’s estate.
[109] The level of factual dispute and the acrimonious nature of much of that dispute is indicative of both distrust and hostility between John and Jodie. It is yet to be determined if Jodie is properly described as a beneficiary of Michelle’s estate. If she is, and indeed pending that determination, I find there is a real risk of both her interests and those of Ian being prejudiced if John is the administrator.
[110] Applying the principle that there is strong public interest in ensuring the integrity of the Court’s processes in granting letters of administration, and accepting
the serious shortcomings in John’s conduct to date as administrator, I find it is expedient in the interests of the beneficiaries that John be removed as administrator.
[111] Jodie seeks an order she be appointed as administrator but, as Ms McGoldrick conceded, it is now clear that David Hughes, Elizabeth Hughes and Damien Hughes might well have an interest in Michelle’s estate and, if they do, Jodie would not have standing.
[112] I allow the application and direct that John is to be removed as the administrator of Michelle’s estate. I dismiss the application for an order that Jodie be granted letters of administration.
[113] As will be clear, this decision does not determine Michelle’s paternity. That is an issue the parties will need to address to bring this unhappy saga to an end.
[114] Having regard to the modest size of this estate and the costs and delays incurred to date I hope the parties, together with the Hughes connections, can reach a consensus view as to the final administration of Michelle’s estate. John would be well advised to set aside monies to the value of the estate in the event of either an agreed or Court ordered redistribution of the estate assets.
Result
[115]I recall the grant of letters of administration to John.
[116]I decline the application to grant letters of administration to Jodie.
[117] John has fully dissipated the estate assets. In those circumstances I decline to make an order that he return all estate assets.
[118]I award costs on a 2B basis against John in favour of Jodie.
[119] If there are issues as to costs that cannot be agreed between the parties, each party has leave to file submissions of no more than five pages within 10 working days
of the date of this judgment, and reply submissions of no more than five pages within five working days of the other party’s submissions.
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Eaton J
Solicitors:
McGoldrick Law Limited, Whangarei BCM Law, Paraparaumu
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