Turner v Forsyth

[2022] NZHC 1590

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2022-412-7

[2022] NZHC 1590

UNDER

the Administration Act 1969

IN THE MATTER

of the Estate of Jeremy Anthony Ruddle

BETWEEN

JESSIE SARAH TURNER

Plaintiff

AND

MICHELLE FORSYTH

First Defendant

NICOLE ELIZABETH ECKHOFF

Second Defendant

Hearing:

(Determined on the papers)

Counsel:

M Wallace and K L MacLean for Plaintiff W G Todd for First Defendant

J Beck for Second Defendant

Judgment:

5 July 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Consent Judgment)

TURNER v FORSYTH [2022] NZHC 1590 [5 July 2022]

[1]    In this proceeding the plaintiff seeks orders for administration in respect of the Estate of Jeremy Anthony Ruddle who died on 18 July 2021 leaving no Will. The plaintiff claims to have been the de facto partner of the deceased at the time of his death and she is also the mother of one of his children who is a minor.

[2]    The first defendant is the deceased’s estranged mother who opposes the claim on the basis that she asserts the plaintiff was not the de facto partner of the deceased.

[3]    The deceased had another child who is also a minor and that child’s mother is the second defendant and who also opposes the plaintiff’s claim.

[4]    Accordingly, the primary issue for determination is whether the plaintiff was the de facto partner of the deceased at the time of his death.

[5]    Meanwhile, it has not been possible for matters to be progressed in relation to the estate in the absence of an administrator.

[6]    The parties, by consent, seek the appointment of a temporary administrator under s 7 of the Administration Act 1969. That section provides:

7        Administration pending legal proceedings

(1)Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant of administration, are pending, the court may grant administration of the estate of the deceased to a temporary administrator, who shall, until he or she is discharged or removed under section 21, have all the rights and powers of a general administrator, other than the right of distributing the balance of the estate remaining after payment of debts, funeral and testamentary expenses, duties, and fees, and every such temporary administrator shall be subject to the immediate control of the court and act under its direction.

(2)The court may, out of the estate of the deceased, grant to a temporary administrator appointed under this section such reasonable remuneration as the court thinks fit.

[7]    Whata J in Re Estate of McCue in considering a s 7 application proceeded on the basis that:1

1 Re Estate of McCue [2015] NZHC 1271 at [11].

(a)There must be a legal proceeding touching the validity of the Will of a deceased person or the grant of administration – that is the case here.

(b)It must be necessary to grant an order for interim administration in order to preserve and to manage the assets of the estate pending the resolution of the proceedings. That consideration is satisfied here as I am advised the deceased owned a building which may be uninsured and the parties are unsure who has access to the building. There are potentially other assets to be secured and the issue of tax liabilities to be addressed.

(c)The proposed appointee must be suitably qualified to perform the task. Mr Gerard Decourcy, solicitor of Downie Stewart, lawyers, Dunedin is nominated and he has filed an affidavit confirming his expertise in this area. I accept he is a suitable person for appointment.

[8]    The parties have  sensibly  agreed  to  the  appointment  of  Mr Decourcy  as a temporary administrator. With the deceased having died nearly a year ago, it is self-evident that steps must be taken to properly manage and control his assets and liabilities.

[9]Accordingly, by consent, there are orders in terms of paragraphs 1(a), (b) and

(c) of the on notice application for appointment of a temporary administrator dated   9 June 2022.

Associate Judge Lester

Solicitors:

Sidekick Legal, Christchurch (for Plaintiff)

Hope & Associates Legal, Oamaru (for First Defendant) Jenny Beck Law, Dunedin (for Second Defendant)

Copy to counsel:

M Wallace, Barrister, Christchurch (for Plaintiff)