Anderson v Little

[2020] NZHC 1784

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-968

[2020] NZHC 1784

BETWEEN

SARAH EVELYN MARIE ANDERSON

Plaintiff

AND

GARY GRANT LITTLE

First Defendant

DARRYL CRAIG LITTLE
Second Defendant

PUBLIC TRUST

Third Defendant

Hearing:

On the papers

Counsel:

R O Parmenter for Plaintiff

No appearance for First Defendant No appearance for Second Defendant

Judgment:

27 July 2020

JUDGMENT OF WHATA J

This judgment was delivered by me on 27 July 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Daniel Overton & Goulding, Onehunga

Simpson Grierson, Auckland Brannigans, Manurewa

ANDERSON v LITTLE [2020] NZHC 1784 [27 July 2020]

[1]                 The late Josephine Marthur Golda Meirson-Anderson, of Mangere, Auckland, superannuant (the testatrix), died at Auckland on 8 December 2016. The testatrix had three children in her lifetime, all of whom are living:

(a)The plaintiff (Sarah Anderson);

(b)the first defendant (Gary Little); and

(c)the second defendant (Darryl Little).

[2]                 At the time of her death, the testatrix’s last will was that dated 19 July 2012 (the 2012 Will). The appointed executrixes of the 2012 Will were:

(a)Sarah Anderson; and

(b)Barbara Clifford.

[3]                 On 28 March 2018, Barbara Clifford renounced all her rights and title to the probate and execution of the 2012 Will.

[4]                 The first and second defendants initially had misgivings about the capacity of the testatrix. Gary Little filed a caveat against a grant of probate of the 2012 Will. That prompted the present application for probate in solemn form, by Ms Anderson. There was also an alternative claim in respect of a 2006 will where the Public Trustee was named as executor. A temporary administrator was also appointed on 23 May 2019. The proceedings against the Public Trustee were discontinued on 30 January this year. The plaintiff and the remaining defendants then reached a settlement and now do support the grant of probate to Ms Anderson. Admissions have been filed by the defendants accordingly. There is also no question as to costs.

[5]                 There was a range of documentation submitted with the present application, including:

(a)An admission by the first and second defendants on the first cause of action;

(b)the affidavit of the plaintiff seeking grant of probate in solemn form, which refers to a number of concerns with the 2012 Will;

(c)an affidavit of plight from Mr Lawson, the solicitor who drew and witnessed the 2012 Will;

(d)an affidavit of plight by Ms Wratten, the plaintiff's solicitor, concerning the state of the 2012 Will upon her receipt of it; and

(e)a draft order for probate in solemn form, seeking the discharge of the current temporary administrator of the deceased’s estate upon the resolution of the present proceeding.

[6]                 Having reviewed the abovementioned documentation, I am satisfied that the remaining issues identified by the Registrar, dealing with apparent inconsistencies and the state of the 2012 Will have been appropriately answered.

[7]Accordingly, I make the following orders as sought:

(a)An order that probate of the 2012 Will be granted to Ms Anderson in solemn form; and

(b)the removal of the current temporary administrator, pursuant to s 21 of the Administration Act 1969.

[8]                 The reasonable costs of the applicant shall be paid out of the estate. If quantum is in issue, the amount will be fixed by the Registrar.