Pentland v Pentland - [2022] NZHC 186

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…

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 Pentland v Pentland

Details

AGLC: Pentland v Pentland [2022] NZHC 186
Case: [2022] NZHC 186
Decision Date: 15 February 2022

CaseChat Overview and Summary

The parties to this action were Jodie Aroha Pentland and John James Pentland. The dispute was over the administration of the estate of Michelle Beverley Pentland. This case was heard in the High Court of New Zealand Wellington Registry. The legal issue in this case was whether the grant of letters of administration made to John should be set aside. The court found that the grant should be set aside. The reasoning of the court was that John had acted improperly by failing to disclose important information in his application for letters of administration and by failing to act as a prudent and responsible administrator. The court also found that there was a real risk that Jodie's interests and those of Ian would be prejudiced if John was the administrator. The court ordered that John be removed as the administrator of Michelle's estate and declined to make an order that Jodie be granted letters of administration.

Orders