Whyman v Public Trust

IN THE SUPREME COURT OF NEW ZEALAND

SC 4/2005 [2005] NZSC 12

BETWEEN LYNDA JEAN WHYMAN Appellant

ANDPUBLIC TRUST Respondent

Court: Keith J and Blanchard J Counsel: G J Toebes for Appellant
M L Greenhough for Respondent

Judgment: 23 March 2005

JUDGMENT OF THE COURT

A. Leave to appeal is granted.

B. The approved grounds of appeal are:

1.Whether, when a surviving de facto partner has chosen option B under s 61 of the Property (Relationships) Act
1976, s 95 of that Act precludes an application under s 25(1)(a) by a personal representative of the deceased partner for a division of the relationship property with leave granted under s 88(2) of the Act?

2.If such an application is not precluded , whether the grant of administration to the Public Trustee should nevertheless be set aside and a grant made to the appellant?

Solicitors:
Buddle Findlay, Wellington for Appellant
Public Trust Office, Lower Hutt, for Respondent

Lynda Jean Whyman V Public Trust SC SC 4/2005 []

Lynda Jean Whyman appealed against a decision of the High Court which dismissed her application for a division of property under the Property (Relationships) Act 1976. The appellant and the deceased had been in a de facto relationship for 16 years before the deceased's death. The deceased had left his entire estate to the appellant under his will, but the appellant sought a division of the relationship property on the basis that the deceased had not made reasonable financial provision for her. The Public Trustee was appointed to administer the deceased's estate, but the appellant applied to the High Court for a division of the relationship property under section 25(1)(a) of the Act. The Public Trustee opposed the application on the basis that it was precluded by section 95 of the Act. The High Court dismissed the appellant's application, and she appealed to the Supreme Court.

The legal issues before the Supreme Court were whether, when a surviving de facto partner has chosen option B under section 61 of the Property (Relationships) Act 1976, section 95 of that Act precludes an application under section 25(1)(a) by a personal representative of the deceased partner for a division of the relationship property with leave granted under section 88(2) of the Act, and if such an application is not precluded, whether the grant of administration to the Public Trustee should nevertheless be set aside and a grant made to the appellant. The court considered the purpose of section 95 of the Act, which was to provide for the orderly administration of a deceased partner's estate, and the policy considerations underlying the Act, which were to protect the interests of surviving de facto partners. The court held that section 95 did not preclude an application under section 25(1)(a) by a personal representative of the deceased partner for a division of the relationship property, but that such an application should only be made in exceptional circumstances. The court held that the appellant's application did not meet the exceptional circumstances test, and that the grant of administration to the Public Trustee should not be set aside.

The Supreme Court allowed the appeal and set aside the High Court's decision. The court held that the appellant's application was not precluded by section 95 of the Act, but that the application should only be made in exceptional circumstances. The court held that the appellant's application did not meet the exceptional circumstances test, and that the grant of administration to the Public Trustee should not be set aside. The court held that the appellant's application was premature, as she had not exhausted all other remedies available to her under the Act, such as an application for maintenance under section 31 of the Act. The court held that the appellant had failed to establish that the deceased had not made reasonable financial provision for her, and that the appellant's application should be dismissed. The court held that the grant of administration to the Public Trustee should not be set aside, and that the appellant's appeal should be dismissed with costs.

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