Whati

[2015] NZHC 3243

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV-2015-485-608577 [2015] NZHC 3243

UNDER	s 61 of the Administration Act 1969
IN THE MATTER OF	the estate of KERIANA HARA LUCINDA LORRAIN WHATI
MATEWAI WHATI Applicant

Hearing:	14 December 2015
Appearances:	G R Webb for Applicant No appearance for Caveator
Judgment:	16 December 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 16 December 2015 at 3.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

WHATI [2015] NZHC 3243 [16 December 2015]

The application

[1]      Keriana Whati died intestate in May 2014.   Her mother, Matewai Whati, applied for Letters of Administration.   Keriana Whati’s former partner, Leva Ariu, lodged a caveat against the application.1   An order nisi was granted under s 61(a)(ii) of the Administration Act 1969 under which a date was set for Mr Ariu to show cause why the order should not be made absolute.  That date was 14 December 2015. By that date the caveat had not lapsed nor been withdrawn.

[2]      Section 61(d) relevantly provides that:2

… if, on the day named in the order nisi, or on the day to which the order is enlarged, the caveator does not appear, an order nisi may be made absolute, upon an affidavit of service …

[3]      Mr Ariu did not file any affidavit or submissions in advance of the hearing date and did not appear at the hearing.  Mr Webb handed up an affidavit of service.  I accordingly made the following orders:

(a)      That the order nisi is made absolute; and

(b)      The applicant have costs on the application on a 2B basis.

The background to the application

[4]      Because Mr Ariu did not appear it is unnecessary to consider the various factual and legal issues that would have arisen had he sought to show cause why the order nisi should not be made absolute.  However, for the benefit of Mr Ariu, who will receive a copy of this decision, I briefly record the relevant issues as they appear from the documents filed.

[5]      Under s 77 of the Administration Act one of those entitled to share in the estate on an intestacy is a surviving de facto partner, which is defined as a person who was living in a de facto relationship with the deceased at the date of his or her death.3     However, s 77B restricts the circumstances in which surviving de facto

partners can take on intestacy.  Relevantly, if a de facto relationship was one of short

1      A previous caveat, lodged in 2014, lapsed in July 2015.

2      Section 61(d).

3      Administration Act 1969, s 2.

duration as defined by s 2 of the Property (Relationships) Act 1976 (PRA), the surviving partner is not entitled to share in the estate unless the Court is satisfied that there is a child of the de facto relationship or that the surviving partner made a substantial contribution to the relationship and the Court is satisfied that not being entitled to succeed on intestacy would result in serious injustice to the partner.  This test is the same as the test under s 85 PRA for the entitlement of a surviving de facto

partner to an order for division of relationship property.4

[6]      A relationship  of  short  duration  is  defined  in  ss  2  and  2E  of  the  PRA, relevantly:

(b)      In relation to a de facto relationship, a de facto relationship in which the de facto partners have lived together as de facto partners–

(i)       for a period of less than three years; or

(ii)       for a period of three years or longer, if the Court, having regard to all the circumstances of the de facto relationship, considers it just to treat the de facto relationship as a relationship of short duration.

[7]      In her affidavit Ms Whati deposed that before her death Keriana Whati lived in Te Awamutu.  When she became ill in 2011 Ms Whati moved to Te Awamutu to care for her.  At about that time Keriana Whati began a relationship with Mr Ariu, who was living in Wellington.   He later moved to Te Awamutu and lived with Keriana Whati and her mother.

[8]      There is a dispute as to the amount of time Mr Ariu spent in Te Awamutu before 2012.  Ms Whati has deposed that he visited Te Awamutu only twice prior to February 2012, when he moved to live with them.  In correspondence between the respective solicitors, Mr Ariu’s solicitor advised that, according to his instructions, Mr Ariu stayed every weekend in Te Awamutu after January 2011 and moved to Te Awamutu not long afterwards.   However, Mr Ariu did not file any affidavit confirming this.

[9]      The issues evident from the papers filed in this application were (1) the length of time that Mr Ariu and Keriana Whati lived together as de facto partners and

(2) if they had lived together for less than three years, whether Mr Ariu made a

4      Property (Relationships) Act 1976, s 85(3).

substantial contribution to the relationship and (3) whether excluding him from the estate would result in serious injustice to him.

[10]     The first issue is a question of fact and degree as to when the relationship

moved to one that could properly be characterised as “living together as a couple”.5

The question of whether a couple have been living together “as a couple” is, of course, a question of fact but the PRA identifies relevant considerations.6    Regard must be had to all the circumstances of the relationship, including its duration, the nature and extent of common residence, the existence or not of a sexual relationship, the degree of financial dependence or inter-dependence, arrangements for financial support between the parties, the ownership, use and acquisition of property, the

degree of mutual commitment to a shared life, the care and support of children, the performance of household duties and the reputation of public aspects of the relationship.

[11]     Some of these were matters that Ms Whati addressed in her affidavit.   She said that Keriana Whati and Mr Ariu lived together for less than three years.  This meant that it would have been for Mr Ariu, had he appeared, to show either that they had lived together for three years or more. Alternatively, he would have had to show that his contribution to the relationship and his personal circumstances would make

it seriously unjust to exclude him from the estate.

P Courtney J

5      Fisher on Matrimonial and Relationship Property at [2.9].

6      Section 2D.