MR v Public Trust  NZFC 7325
Published 25 March 2021
Appointment of litigation guardian — sole beneficiary of estate — fairly and competently able to conduct litigation — role of litigation guardian — Evidence Act 2006, s 90F.
This was an application for the appointment of a litigation guardian. The subject person, in her thirties and assessed as having the cognitive capacity of a 6-year old, was the sole beneficiary of her father's estate. She was currently in the care of the first applicant, an aunt, in Australia. The second applicant, also a family member, lived in New Zealand where the testamentary promise proceedings were to take place.
In deciding who to appoint, a Court had to consider an applicant's fitness: whether that person was able to fairly and competently conduct litigation on behalf of an incapacitated person and whose interests are not adverse to those of the incapacitated person. The person also had to consent to being a litigation guardian.
Both applicants submitted that they ought to be appointed as the litigation guardian, and the Judge assessed them both as being fit for the role. In the end, the decision came down to the applicants' respective understanding of the role of litigation guardian: the second applicant understood that the role was limited to conducting litigation on behalf of the subject person, rather than a wider role of managing or administering the estate funds.
The Judge appointed the second applicant as litigation guardian.
Judgment Date: 25 August 2020.
* * * Note: names have been changed to comply with legal requirements. * * *