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Baldock v Hawkins [2019] NZFC 9832

Published 26 February 2020

Application for extension of time to bring claim — time-barred — testamentary promise — final distribution — de minimis rule — deed of delegation — inherent jurisdiction — Law Reform (Testamentary Promises) Act 1949 — Administration Act 1969, s 49 — Family Protection Act 1955 — Family Courts Act 1980, s 11— Lilley v Public Trustee [1978] 2 NZLR 605 (CA) — Lilley v Public Trustee [1981] 1 NZLR 41 (PC) — Sullivan v Brett [1981] 2 NZLR 202 (CA) — Rutherford v Rutherford [2015] NZHC 878. The applicant brought a claim under the Law Reform (Testamentary Promises) Act (the Act) against the executor of her late mother's estate. The executor was the applicant's sister. The deceased was survived by two other children and she provided for them in her will by dividing the residuary of her estate equally between them. The applicant believed a promise had been made to her that she would receive an extra share of the estate because of her work in separate legal proceedings between the deceased and her brother. The deceased was awarded $120,000 from her brother's estate shortly before her death. However, the applicant needed to apply for an extension of time to bring a claim as she had not made her application within 12 months from the grant of probate, as required by s 49(3) of the Administration Act 1969. It was possible for her to apply for leave out of time but no extension could be granted after final distribution of the estate. Final distribution of an estate is an absolute time bar. Final distribution is not defined within the Act but case law provides guidance that it occurs when the administrator ceases to hold assets in their capacity of an administrator or trustee. In Sullivan v Brett final distribution was described as a question of fact made out when the executor had completed all required duties (such as proving the will, burying the deceased, getting in the assets and paying the debts) and the residuary is transferred to the beneficiaries or the executor assents to vesting property in themselves as a trustee. The applicant argued the executor's tasks were incomplete as $1000 had been borrowed from the deceased's bank account without being repaid; the applicant was owed $26.50 by the estate; and the executor had made an agreement to reimburse the applicant for her time spent on their late uncle's estate, and therefore there was a relevant employment contract or duty to pay her for her time. The Judge rejected the argument that there was a debt of $1000, as there was no evidence it was outstanding. The Judge was convinced by the executor's evidence she had repaid the loan. The debt of $26.50 was rejected on the basis of the de minimis rule. Finally, the Judge rejected the claim that there was any contract or obligation for the executor to pay the applicant for her time spent on her uncle's estate. There was no proof or certainty of terms. The executor had completed all of her duties and there were no outstanding tasks or debts. The Judge found that final distribution occurred on 4 November 2016 when the last of the estate was divided and transferred to the four children. An application for an extension had to be filed before this date. The applicant then argued the Court should used its "inherent jurisdiction" to do what was fair and allow her application. This argument was rejected as the Family Court is a statutory court of limited jurisdiction; it has no inherent jurisdiction to make decisions other than in accordance with the relevant statutory provisions. The application was dismissed. Judgment Date: 27 November 2019.