LAERY v GROUT [2014] NZHC 2495

LAERY v GROUT [2014] NZHC 2495

The appointment of Mr William Malcolm Patterson as temporary administrator under s7 Administration Act 1969 vested in him the rights and powers of a general administrator (except distribution), including the right to call for and take delivery of the deceased's will and power of attorney files from the plaintiffs; the plaintiffs, as non‑acting executors while an administrator is in office, must deliver the files and cannot resist production by claiming privilege in respect of documents relevant to a beneficiary, with any privilege claims to be determined by the administrator under s66 Evidence Act 2006 within the directed timeframe.

Citation
[2014] NZHC 2495
Parties
Plaintiff/applicant: Desmond Philip Laery; Plaintiff/applicant: Simon Charles David Weil; First Defendant/first Respondent: Jennifer Kay Grout; Second Defendant/second Respondent: Sarah Kay Grout; Third Defendant/third Respondent: Marjory Hamlin (also known as Marjory Vinet)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 October 2014
Procedural Posture
Application Under S14 Wills Act 2007 Challenging Validity of 2013 Will Document; Related Counterclaims Under Testamentary Promises and Will Interpretation / Interlocutory Application for Discovery, Adjournment and Costs (oral Judgment on Application)
Outcome
Application allowed in part
Legal Topics
Validation of Will Under S14 Wills Act 2007, Temporary Administration Under Administration Act 1969 S7, Discovery and Privilege, Adjournment of Hearing Fixtures, Costs Allocation
Estates and Succession Civil Procedure Evidence Validation of Will Under S14 Wills Act 2007 Temporary Administration Under Administration Act 1969 S7 Discovery and Privilege Adjournment of Hearing Fixtures Costs Allocation

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Parties

Desmond Philip Laery

Plaintiff/applicant

Simon Charles David Weil

Plaintiff/applicant

Jennifer Kay Grout

First Defendant/first Respondent

Sarah Kay Grout

Second Defendant/second Respondent

Marjory Hamlin (also known as Marjory Vinet)

Third Defendant/third Respondent

Procedural Posture

Application Under S14 Wills Act 2007 Challenging Validity of 2013 Will Document; Related Counterclaims Under Testamentary Promises and Will Interpretation / Interlocutory Application for Discovery, Adjournment and Costs (oral Judgment on Application)

Legal Issues

  1. 1 Whether a temporary administrator appointed under s7 Administration Act 1969 has the rights and powers to call for and take possession of will and power of attorney files
  2. 2 Whether named executors retain the right to possession of estate files and the right to claim privilege after appointment of a temporary administrator
  3. 3 Whether the plaintiffs must deliver the deceased's will and power of attorney files to the temporary administrator and whether tailored discovery is appropriate

Ratio Decidendi

The appointment of Mr William Malcolm Patterson as temporary administrator under s7 Administration Act 1969 vested in him the rights and powers of a general administrator (except distribution), including the right to call for and take delivery of the deceased's will and power of attorney files from the plaintiffs; the plaintiffs, as non‑acting executors while an administrator is in office, must deliver the files and cannot resist production by claiming privilege in respect of documents relevant to a beneficiary, with any privilege claims to be determined by the administrator under s66 Evidence Act 2006 within the directed timeframe.

Court Disposition

Application allowed in part

Orders

  • Ordered that the will and power of attorney files for the deceased from 2007 to the present held by the plaintiffs (and relevant law firms) be delivered to the temporary administrator Mr William Malcolm Patterson forthwith
  • Ordered that Mr Patterson determine any claims to privilege over documents on those files in accordance with s66 Evidence Act 2006 and make any application regarding privilege within 14 days of delivery or seek an extension by memorandum