IN THE ESTATE OF BERGHAN [2020] NZHC 1399 .

IN THE ESTATE OF BERGHAN [2020] NZHC 1399 .

Although adoption under s 16(2) of the Adoption Act 1955 removes any legal beneficial interest, the Court's discretion under s 6(2)(a) of the Administration Act 1969 permits grants to persons other than those legally entitled; the unanimous consent of all beneficially entitled siblings combined with the applicant's ongoing cultural whakapapa connection to the deceased constituted special circumstances making it necessary and expedient to grant letters of administration to the applicant.

Citation
[2020] NZHC 1399
Parties
Applicant: Ms Sabin; Deceased: Tasman William John Berghan
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 June 2020
Procedural Posture
Application for Letters of Administration and Review of Registrar's Decision / Judgment on Review
Outcome
Review allowed; letters of administration granted to Ms Sabin under s 6(2)(a) of the Administration Act 1969
Legal Topics
Letters of Administration, Effect of Adoption on Intestacy, Special Circumstances Under S 6(2) Administration Act 1969, Whakapapa and Tikanga in Administration Decisions, Role of Beneficiaries' Consent
Estate Law Intestacy Adoption Law Māori Customary Law Probate Procedure Letters of Administration Effect of Adoption on Intestacy Special Circumstances Under S 6(2) Administration Act 1969 +2 more

Case Brief

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Parties

Ms Sabin

Applicant

Tasman William John Berghan

Deceased

Procedural Posture

Application for Letters of Administration and Review of Registrar's Decision / Judgment on Review

Legal Issues

  1. 1 Whether a legally adopted biological child may be granted letters of administration despite having no legal beneficial interest under the Adoption Act
  2. 2 Whether the consent of beneficially entitled siblings and their stated gift of their interests creates an entitlement or justifies a grant
  3. 3 Whether the court's discretion under s 6(2)(a) of the Administration Act 1969 permits granting administration to someone other than a person beneficially entitled

Ratio Decidendi

Although adoption under s 16(2) of the Adoption Act 1955 removes any legal beneficial interest, the Court's discretion under s 6(2)(a) of the Administration Act 1969 permits grants to persons other than those legally entitled; the unanimous consent of all beneficially entitled siblings combined with the applicant's ongoing cultural whakapapa connection to the deceased constituted special circumstances making it necessary and expedient to grant letters of administration to the applicant.

Court Disposition

Review allowed; letters of administration granted to Ms Sabin under s 6(2)(a) of the Administration Act 1969

Orders

  • Review under r 2.11 High Court Rules 2016 allowed
  • Letters of administration of the estate of Tasman William John Berghan granted to Ms Sabin pursuant to s 6(2)(a) Administration Act 1969