Court finds medical records and lawyers’ files irrelevant to executor removal application
The High Court has declined an application for non-party discovery of medical records and lawyers’ files in a dispute over whether two brothers should remain executors of their late mother’s estate.
In O’Sullivan v Harper [2026] NZHC 2954, the court declined Maree Josephine O’Sullivan’s application for discovery against Health New Zealand (Te Whatu Ora) and Donald Webster or WebsterLaw. The substantive application to remove her brothers, Blair Henry Harper and Vaun Llewelyn Harper, as executors of Carol Jean Harper’s estate is scheduled for 20 October 2026.
O’Sullivan alleged her brothers had conflicts of interest in administering the estate and could not set aside their own interests in favour of the other beneficiaries.
She said assets in her mother’s estate had largely been acquired from the vesting of assets from a family trust settled by her parents. She alleged her brothers owed debts to that trust that had not been forgiven and that her mother had also advanced them other loans.
The brothers proposed distributing the estate on the basis that the loans had been forgiven through natural love and affection, according to the judgment. O’Sullivan disputed that position and said no documents recorded the forgiveness of the loans.
The respondents opposed their removal. They maintained that their mother appointed them as executors, that the estate was being properly administered, and that removing them would cause unnecessary cost, delay, and disruption. They also said any advances their mother made to them had been repaid or forgiven.
O’Sullivan sought medical records from Health New Zealand (Te Whatu Ora) covering January 2019 to May 2025. She argued the records were relevant to her mother’s cognitive capacity, including whether she had capacity when her brothers said she forgave the loans.
The High Court found the removal application did not require it to decide whether the loans had been forgiven or remained owing. The issue was whether the respondents had conflicts of interest that made it undesirable for them to continue as executors or administrators of the estate.
The court found the deceased’s medical history was unlikely to prove or disprove anything consequential to that issue. It also found discovery of the medical records would not be proportionate in the context of the removal application.
O’Sullivan also sought wide-ranging documents from WebsterLaw concerning an enduring power of attorney, wills, trusts, property transfers, financial records, and legal fees.
The court found the proceeding did not challenge the validity of any power of attorney or the will. It characterised those aspects of the discovery application as a “fishing expedition” and found the requested material unlikely to prove or disprove anything consequential to the removal application.
Ultimately, the High Court declined the discovery applications against Health New Zealand (Te Whatu Ora) and Donald Webster or WebsterLaw.
