Estate of Berghan [2020] NZHC 1399; [2020] 2 NZLR 585 (19 June 2020)

Last Updated: 15 May 2021

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-604560 [2020] NZHC 1399

IN THE ESTATE

of TASMAN WILLIAM JOHN BERGHAN Deceased

On the papers:	16 June 2020
Judgment:	19 June 2020

JUDGMENT OF CULL J

• [1] Ms Sabin was legally adopted but remained in contact with her biological Māori father and his whānau. On his death, Ms Sabin sought the grant of administration of his estate but this was declined by the Registrar. She now seeks a review of the Registrar’s decision to decline her the grant of administration on her biological father’s intestacy.

• [2] Under the Administration Act 1969 and the Adoption Act 1955, Ms Sabin has no beneficial interest in the deceased’s estate because children who have been legally adopted have no claim on the estate of their biological parents. Despite the fact that the beneficially entitled siblings of the deceased consented to Ms Sabin being made the administrator, the Registrar rejected Ms Sabin’s application on the basis of ss 6(1), 77, and 81 of the Administration Act and s 16 of the Adoption Act.

Background

• [3] The deceased passed away on 1 August 2019. On his death, Ms Sabin made full inquiries and searches for his will. Her inquiries did not reveal any testamentary documents or will of the deceased. I accept that the deceased died wholly intestate. The deceased has never been married nor entered into a civil union. He was not living

IN THE ESTATE OF BERGHAN [2020] NZHC 1399 [19 JUNE 2020].

in a de facto relationship at the time of his death. The deceased was not survived by any other child who was born to him, or adopted by him, or in respect of whom he has paternity. He has no surviving parents. Ms Sabin has made reasonable inquiries for the purpose of the Status of Children Act 1969 as to the existence of a parent or child of the deceased who could claim an interest in his estate. There is no record of any other parent or child.

• [4] The deceased was survived by seven adult siblings, three of whom live in New Zealand. All seven siblings consent to Ms Sabin being granted administration. They also record that they give their beneficial interest in the deceased’s estate to Ms Sabin.

• [5] Ms Sabin is the only child of the deceased. However, she was legally adopted by her stepfather. The effect of s 16(2) of the Adoption Act 1955 is that on adoption, Ms Sabin ceased to be the child of her biological father, and the deceased ceased to be her father.

• [6] Ms Sabin applied to this Court for an order that letters of administration of the state of the deceased be granted to her. The grounds on which she sought the order are:

(a) the deceased died wholly intestate;

(b) the applicant, Ms Sabin, is the biological daughter of the deceased – she was legally adopted out of the deceased’s family;

(c) the deceased had no other children, and no spouse or de facto partner, and non-surviving parent;

(d) the statutory beneficiaries, the deceased’s siblings, have given their interest in the estate to Ms Sabin. She says this gives her a beneficial interest in the estate;

(e) these constitute special circumstances under s 6(2) of the Administration Act which justify the issue of a grant in Ms Sabin’s favour; and

(f) other persons with a priority higher than or equal to that of Ms Sabin have consented to this application.

• [7] The application was not granted. The Registrar found that the circumstances above-outlined do not constitute special circumstances that justify making a grant to Ms Sabin, who has no beneficial interest under the Administration Act because of her adoption. The Registrar said that as there is no basis in legislation for the beneficially entitled siblings of the estate to “give their interest in the estate” to Ms Sabin, the beneficiaries may either accept their entitlement and apply for letters in their own right, or disclaim their entitlement, in which case it would pass to their children under s 81 of the Administration Act. The Registrar held that a private agreement within the family to give the assets of the estate to Ms Sabin after administration has been obtained may be made, but cannot be relied upon by the Registrar in making a grant.

• [8] Ms Sabin has applied for a review of the Registrar’s decision under r 2.11 of the High Court Rules 2016.¹ The Judge may, on review, make any orders he or she thinks just.²

Decision

• [9] The effect of s 16(2) of the Adoption Act 1955 is that on adoption, Ms Sabin legally ceased to be the child of her biological father, the deceased, and the deceased ceased to be her father. This means that Ms Sabin does not have a legal beneficial interest in the deceased’s estate. Under s 77 of the Administration Act, the deceased’s siblings do have a legal beneficial interest in the deceased’s estate.

• [10] However, s 6 of the Administration Act provides the Court a discretion as to whom administration is granted (emphasis added):

(1) In granting letters of administration with or without a will annexed, or an order to administer with or without a will annexed, in respect of the estate of any deceased person or any part thereof, the court shall have regard to the rights of all persons interested in the estate of the deceased person or the proceeds of sale thereof, and, in particular,

1. I note that Ms Sabin did not say that her application for a review was made in under r 2.11. I have proceeded on the basis that it is an application under r 2.11(a) – that is, a review of a Registrar’s exercise of jurisdiction.

² High Court Rules 2016, r 2.11(2).

administration with a will annexed may be granted to a devisee or legatee; and any such administration may be limited in any way the court thinks fit:

provided that, subject to the provisions of subsection (2), where the deceased died wholly intestate as to his or her estate, administration shall be granted to some 1 or more persons beneficially interested in the estate of the deceased, if they make an application for the purpose.

(2) Where by reason of the insolvency of the estate or other special circumstances the court thinks it necessary or expedient to do so, it may—

(a) grant administration to such person or persons as it thinks expedient notwithstanding that some other person is appointed an executor or that, apart from this subsection, some other person would by law be entitled to a grant of administration:

(b) grant probate to 1 or more of the executors appointed by a will, notwithstanding that some other person or persons may also be appointed as an executor or executors.

• [11] I consider that the circumstances here are “special circumstances” under s 6(2)(a), and the Court may therefore grant administration to someone other than someone beneficially entitled or otherwise entitled by law to the grant of administration. I consider it is both necessary and expedient to grant administration to Ms Sabin for the following two reasons.

• [12] First, after having the opportunity of legal advice, the beneficially entitled siblings all certified by way of separate formal consent to Ms Sabin being granted administration. They have also all declared that they wish to give their interest in the deceased’s estate to Ms Sabin. While it is not usual for beneficiaries to simply give their interest over to another person, the fact that they have declared that is their wish and that they have all consented to Ms Sabin being granted administration is an important factor in the “special circumstances” consideration in this instance. Expediency is best upheld by granting Ms Sabin administration.

• [13] Second, there is an important cultural dimension to this application. Ms Sabin is the biological daughter of the deceased. Although she was legally adopted out of the family, she has provided evidence which shows the deep, cultural connection she has with her biological whānau. She says that although she was legally adopted by her stepfather, from her perspective the reality is that she has two fathers. As a young

teenager, she became very close to the deceased and when she became a young mother the deceased became a proud grandfather to her children. Ms Sabin’s biological family connection is recognised by the wider whānau and is the reason that all the deceased’s siblings wish to see Ms Sabin be granted the administration of the estate.

• [14] It is important in this consideration to recognise that Ms Sabin and her whānau are Māori. Ms Sabin deposed that, in Māori culture, whānau are whānau and an adoption certificate does not change the connection one has to whānau. Ms Sabin, her children and her descendants whakapapa to the deceased as is their birth-right, regardless of any legal (or otherwise) adoption.³ All members of the family emphasised that as Ms Sabin is the only biological child of the deceased, the importance of whānau and whakapapa is even more poignant.

• [15] The siblings of the deceased also stressed that a failure to recognise those connections can undermine the cultural significance of whakapapa and Ms Sabin’s place in the whakapapa of the deceased. The Māori Land Court has reinforced this cultural significance, holding that neither the Adoption Act nor the Te Ture Whenua Māori Act 1993 severs a person’s blood connection.⁴ In a paper by Professor Ani Mikaere entitled “Māori Women: Caught in the Contradictions of a Colonised Reality”, she writes:⁵

While it was relatively common for children to be given to someone other than their birth parents to be raised, there was no substitution of parents, no sense in which a mythical nuclear family had to be recreated. The child was born and remained a child of the whanau. The child had an absolute right to know his or her whakapapa.

Although Professor Mikaere was writing about informal (or whāngai) adoption, she explains that in tikanga Māori, a child adopted out of the whānau retains those whakapapa connections.

3. See Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria Printing Press, Wellington, 2013) at 504-515 and 521-538; and Ani Mikaere “Māori Women: Caught in the Contradictions of a Colonised Reality” [1994] WkoLawRw 6; (1994) 2 Waikato L Rev 125 at 136.

⁴ Anderson – Estate of Paul Anderson [2013] Chief Judge’s MB 783 (2013) CJ 783 at [21].

⁵ Mikaere, above n 3, at 136.

• [16] While this recognition of tikanga does not entitle Ms Sabin to a legal beneficial interest under the Administration Act, I find it is highly relevant in a consideration of “special circumstances” under s 6(2) of that Act.⁶ As Ms Sabin frames it, to accept Ms Sabin as the administrator is as much about acknowledgment of her relationship with her whānau and their wishes as it is about the formalities that flow from that. It is an acknowledgment of the deceased’s whakapapa, which lives on through Ms Sabin.

• [17] Under s 6(2)(a) of the Administration Act, I therefore consider there are “special circumstances” in this case which both necessitate and make it expedient to grant Ms Sabin the letters of administration of the deceased’s estate.

Result

• [18] I allow the review under r 2.11 of the High Court Rules and grant Ms Sabin the administration of the deceased’s estate under s 6(2)(a) of the Administration Act.

Cull J

⁶ Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [9].