Re Amundson - [2015] NZHC 1271

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-865 [2015] NZHC 1271

IN THE MATTER of the Wills Act 2007

IN THE MATTER

of the Estate of JOHN JOSEPH MCHUGH (Deceased)

BETWEEN

GEORGINA AMUNDSON, SAMUEL JOSEPH PIVAC, AND JONATHAN CHRISTOPHER RAOS

Applicants

Hearing: 4 June 2015

Appearances:

B M Stewart for Applicants Amundson and Pivac
N P D Percy for Applicant Raos

Judgment:

8 June 2015

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on
8 June 2015 at 4.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Simpson Western, Auckland
Kevin Mcdonald & Associates, Auckland

AMUNDSON & OTHERS [2015] NZHC 1271 [8 June 2015]

[1] This matter comes to me as an interlocutory application on notice for orders appointing Lewis Thomas Grant as temporary administrator. The wider background is that an application has been made for orders declaring a document to be a valid will. Orders as to service were recently made directing that a number of persons needed to be served with the primary application.

[2] All parties to be served consent to the appointment of an interim administrator.

[3] I turn then to examine the merits

Grounds for appointment

[4] The reasons for the interlocutory application are stated as follows:

(a) The substantive application seeks an order that the unsigned will of the deceased be validated as the last will and testament of the deceased pursuant to s 11 of the Wills Act 2007.

(b)The substantive application is a legal proceeding touching the validity of a will of a deceased person, or for obtaining a grant of administration.

(c) It is necessary for a temporary administrator to be appointed.

(d)Lewis Thomas Grant is an expert in estate administration and consents to his appointment.

[5] Affidavits by Christopher Desmond Western and Lewis Thomas Grant have been filed in support. The former provides context to the immediate need for urgency, which I will return to below. The latter confirms his qualifications to act as an administrator (though he has not sworn faithfully to administer the estate).

[6] Mr Western identifies that the deceased was the sole shareholder and director of McHugh Catering Ltd, which owns and operates a restaurant and function business out of premises in Cheltenham, Devonport in Auckland. He notes that the deceased had authority to operate bank accounts for the company and made most of the decisions affecting the operation of the business. The company presently has no director and no ability to appoint a new director as the deceased was the sole shareholder. He says that the filing of an annual return for the company is overdue and that the Registrar of Companies has given an extension of time for filing until 10
June 2015. It is noted that if the company’s annual return is not filed then the

company is likely to be struck off the Register.

[7] It is also noted that the company owns property which is tenanted. The deceased also owned…

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 Re Amundson

Details

AGLC: Re Amundson [2015] NZHC 1271
Case: [2015] NZHC 1271
Decision Date: 8 June 2015

CaseChat Overview and Summary

The applicants Georgina Amundson, Samuel Joseph Pivac, and Jonathan Christopher Raos applied for the appointment of Lewis Thomas Grant as a temporary administrator for the estate of the deceased, John Joseph McHugh. The application was made under the Administration Act 1969, and the applicants sought orders to validate an unsigned will of the deceased as his last will and testament under the Wills Act 2007. The applicants contended that interim administration was necessary to manage the deceased's business and properties, which included a catering company, tenanted properties, and a racehorse. All parties consented to the appointment of an interim administrator.

The legal issues before the court were whether the court had jurisdiction to appoint a temporary administrator under the Administration Act 1969, and if so, whether the proposed appointee was suitably qualified and whether interim administration was necessary. The court had to determine if the prerequisites for such jurisdiction were met, including the existence of pending legal proceedings concerning the validity of the will or grant of administration, and if the appointment was necessary to preserve and manage the estate's assets.

Justice Whata determined that the court had jurisdiction to appoint a temporary administrator under section 7 of the Administration Act 1969, provided that there were pending legal proceedings concerning the validity of the will or grant of administration, and that interim administration was necessary to manage the estate's assets. The court found that all these conditions were met in this case. The applicants demonstrated that there were pending legal proceedings concerning the validity of the will, and that interim administration was necessary to manage the deceased's business and properties effectively. Furthermore, the proposed appointee, Lewis Thomas Grant, was suitably qualified to act as an interim administrator due to his extensive experience in equity, trusts, and estate law. The court made orders appointing Lewis Thomas Grant as the temporary administrator of the deceased's estate, subject to him swearing to faithfully administer the estate.

In conclusion, Justice Whata granted the applicants' request to appoint Lewis Thomas Grant as the temporary administrator of the deceased's estate. The court found that it had jurisdiction to do so under the Administration Act 1969 and that the prerequisites for such jurisdiction were met. The court also found that interim administration was necessary to manage the estate's assets and that Lewis Thomas Grant was suitably qualified to act as an interim administrator.

Orders