Laver v Public Trust as Attorney of Laver HC Auckland CIV-2010-404-6232 [2011] NZHC 777 (14 July 2011)

Last Updated: 2 August 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2010-404-6232}

UNDER the Administration Act 1969 and the Wills

Act 2007

IN THE MATTER OF the ESTATE OF ALBERT LEONARD LAVER

BETWEEN THERESA LAVER Plaintiff

AND THE PUBLIC TRUST AS ATTORNEY OF HARVEY ROBERT LAVER

Defendant

CIV-2011-404-3920

AND IN THE MATTER OF the ESTATE OF ALBERT LEONARD LAVER

Hearing: 13 July 2011 (telephone conference)

Counsel: A Hall for the Plaintiff in CIV-2010-404-6232 and the Applicant in

CIV-2011-404-3920

K Davenport for the Defendant in CIV-2010-404-6232

Judgment: 14 July 2011 at 5:00 PM

JUDGMENT OF WOODHOUSE J (estate administration)

This judgment was delivered by me on 14 July 2011 at 5:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

..........................................

Solicitors / Counsel:

Mr A Hall, Solicitor, Manukau

Ms K Davenport, Barrister, Auckland

LAVER V THE PUBLIC TRUST HC AK CIV-2010-404-6232 14 July 2011

Background

[1] Following my minute of 2 June 2011 in CIV-2010-404-6232 Mrs Laver has filed, in CIV-2011-404-3920, an application for the grant of letters of administration to Andrew Maurice Shirley. The possibility of an application to appoint Mr Shirley, and possible issues in that regard, were noted in the earlier minute.

[2] Mr Albert Laver died intestate. Mrs Laver made an application under the Wills Act 2007 for an order declaring a document to be a valid will. This application was declined in my judgment of 2 June 2011 (with reasons delivered on 3 June

2001) in CIV-2010-404-6232. The only people entitled to administration according to interest, pursuant to s 6(1) of the Administration Act 1969, would be, in the normal course, Mrs Laver as the widow and Mr Albert Laver’s son of an earlier marriage, Mr Harvey Laver. Mrs Laver has not applied for grant of letters of administration because she made a formal election to pursue her entitlement under the Property (Relationships) Act 1976 rather than as a beneficiary of the estate. She is also engaged in proceedings in the Family Court relating to the estate. Mr Harvey Laver is not able to make an application himself because he is incapacitated. The Public Trust is his property manager under the Protection of Personal and Property Rights Act 1988. There has been no application by the Public Trust to be appointed administrator.

[3] There was a suggestion that the Guardian Trust be approached to apply for letters of administration, but that has not been pursued because of the likely cost involved. There was a tentative suggestion at the last hearing that an independent solicitor might be approached, but that has not been pursued.

[4] There was a telephone conference yesterday, 13 July 2011. This was directed principally to the question whether the Public Trust, on behalf of Harvey Robert Laver, opposes the appointment of Mr Shirley. This was considered with some care, and including an important question as to whether Mr Shirley, having regard in particular to his friendship with Mrs Laver, can maintain the necessary independence. In that regard I note that Mr Shirley and Mrs Laver were involved in the telephone conference with Mr Hall.

[5] Following the discussion and responses to queries from Ms Davenport, Ms Davenport advised that the Public Trust does not oppose the appointment of Mr Shirley. That is on the basis that, if difficulties do arise in the administration of the estate it may become necessary for Mr Shirley to stand down and for another administrator to be appointed. I do note in this regard that Mr Shirley’s friendship with Mrs Laver is reference to the friendship he shared with her and her late husband Mr Albert Laver. The basis upon which Mr Shirley has offered to act as administrator, without charge, is recorded in his affidavit in support of the administration application.

[6] The present application for grant of letters of administration can therefore proceed to be assessed on its merits as it stands.

Application for grant of letters of administration

[7] I am satisfied, in terms of s 6(2) of the Administration Act 1969, that there are special circumstances which make it expedient to grant administration to Mr Shirley. The circumstances which make it expedient are, in essence, those recorded above, in my minute of 2 June 2011 and in the judgment of 3 June 2001. In addition, the Public Trust will have an active interest in the administration of this estate as attorney for Mr Harvey Laver, a beneficiary. This arises from the fact that there are the separate proceedings before the Family Court in which the respective interests of Mrs Laver and Mr Harvey Laver will, hopefully, be resolved. Another circumstance making it expedient to appoint Mr Shirley arises out of the last observation. It may very well be that, once the respective interests of Mrs Laver and Mr Harvey Laver have been resolved in the Family Court proceedings, or by settlement, not a great deal may be required to be undertaken by Mr Shirley in the formal administration of the estate.

[8] Accordingly, there is an order as moved in CIV-2011-404-3920 granting administration to Mr Shirley.

[9] This order is made on the condition that Mr Shirley is not to dispose of or otherwise deal in any asset of the estate, save to take title as administrator, without the consent in writing of the Public Trust or in accordance with any Court order.

[10] Leave is reserved to the Public Trust on behalf of Harvey Laver to make application to this Court, on short notice, in respect of any matter arising out of or relating to the administration of the estate.

Peter Woodhouse J