Applicant by Fox

[2018] NZHC 2533

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1055

[2018] NZHC 2533

IN THE MATTER OF

An application by KENNETH JOHN FOX as sole executor and trustee of the ESTATE OF EILEEN PHYLLIS FOX

BETWEEN

KENNETH JOHN FOX

Applicant

Hearing:	On the papers
Appearances:	J Nedeljkov on instruction from K Davenport QC for the Applicant
Judgment:	27 September 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on Thursday 27 September 2018 at 11.30 am pursuant to Rule 11.5 of the High Court Rules.

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

Counsel:

K Davenport QC, Barrister, Auckland J Nedeljkov, Barrister, Auckland

Solicitors:
B Wyber, Sellars & Co, Helensville

Re an application by Fox [2018] NZHC 2533 [27 September 2018]

Introduction

[1]    The applicant, Kenneth Fox, who is the sole executor and trustee of the estate of Eileen Phyllis Fox and who is also a beneficiary of the estate as to a 6/8th share, seeks a direction under s 53 of the Administration Act 1969 (the Act) permitting payment of the 1/8th share bequeathed to his late half sister Margaret Rose Kiata (Margaret) into his solicitor’s trust account on terms.

Background

[2]    Margaret died without a will and none of her five children have yet applied for Letters of Administration. It is possible (but unconfirmed) that at the time of her death she may also have remained married to her estranged husband, Wally Kiata. He has similarly not applied for Letters of Administration.1

[3]    Until recently, the same applied in respect of the estate of Jane Elizabeth Frances Fox (Jane), another half-sister of the applicant and beneficiary of the remaining 1/8th share of Eileen’s estate. However, her son Howard Fox has recently applied for and been granted Letters of Administration for her estate so that similar orders are not required in that respect.

[4]    Initially2 Kenneth applied for general directions as to the mechanism by which Eileen’s estate could be distributed to Margaret’s (and at that stage Jane’s) estate.

[5]    On 21 June 2018 Courtney J made orders setting the application down for formal proof and directing that no documents (including synopses, affidavits or memoranda) were to be filed without leave of the Court. In the event, no such leave has been sought.

1      This information was first advised to the Court on 26 September 2018. Mr Wally Kiata was not among those directed to be served with the applicant’s originating application (refer Minute of Associate Judge Bell dated 30 May 2017). I dispense with service of the originating application on him but direct that he be served with a copy of this judgment.

2      By Originating Application dated 26 May 2017 para 1(a). In the same Originating Application other orders were sought which are not germane to this judgment. Some were disposed of by way of the judgment of Brewer J (Fox v Fox [2018] NZHC 1021 [11 May 2018]).

[6]    On 27 July 2018 counsel filed a memorandum in support of Kenneth’s application for formal proof. In that memorandum a refinement of the application was foreshadowed in terms of an order appointing the Public Trust as Administrator of Margaret’s Estate.

[7]    In response I inquired whether the Public Trust had consented to the appointment and if so on what terms. I was advised that it had “provisionally” agreed to do so but it would require to consult further with Margaret’s children.

[8]    The Public Trust has now declined to be appointed. In an email dated 21 August 2018 its principal trustee, Ms Smith, advises that she had been in communication with Margaret’s son Michael Kiata with a view to either encouraging him to apply as Administrator with the support of the Public Trust or alternatively the Public Trust itself making the application. However, Ms Smith advises that Michael declined both options “and does not want us to be involved stating he had a friend who is a lawyer who will be able to help him”. In the month that has since elapsed, no such application has yet been brought.

Application

[9]    Kenneth therefore withdraws his application to appoint the Public Trust as Administrator and reverts to his application under s 53 of the Act.

[10]He seeks directions that:

(a)upon realisation of the estate (which comprises a number of properties) a 1/8th share of the estate’s value be paid to the trust account of his solicitors, Sellars and Co, on interest bearing deposit pending a grant of administration of the estate of Margaret; and

(b)he direct his solicitor to release the 1/8th share to the Administrator of the estate of Margaret when a sealed grant of Administration for Margaret’s estate is served on the executor and the executor’s solicitor.

Discussion

[11]   Eileen died on 19 November 2011  and  probate of her will was granted on    4 April 2012. Margaret has herself been dead for approaching four years.3  Kenneth is under a duty to finalise administration of Eileen’s estate but, in the absence of an application for Letters of Administration by any of Margaret’s children (or her husband if she remained married to him at death), is unable to do so.

[12]   I consider the proposed directions pragmatic and sensible in that they adequately protect Margaret’s children’s interests in Eileen’s estate (and possibly that of Mr Wally Kiata) pending an application for Letters of Administration by any one or more of them. They also enable Kenneth to complete distribution of the estate as he is lawfully obliged to do.

Result

[13]I direct, pursuant to s 53 of the Administration Act 1969 that:

(a)once the administration of the estate of Eileen Phyllis Fox is completed and the value of the estate is known, the executor is to transfer a 1/8th share of such value into his solicitors’ trust account (Sellars and Co, 69 Mill Road, Helensville) on interest bearing deposit pending a grant of Letters of Administration for the estate of Margaret Rose Kiata; and

(b)the executor is to direct his solicitor to release the 1/8th share (together with all accrued interest) to the administrator of the estate of Margaret Rose Kiata when a sealed grant of Administration for her estate is served on the executor and the executor’s solicitor.

[14]   I direct that the solicitors for the applicant forward a copy of this judgment to Margaret’s children and to Mr Wally Kiata at their last known physical or email address.

3      She died on 23 October 2014.

[15]   I reserve leave to the parties entitled to claim in Margaret’s intestacy to apply for a variation of this order, limited to identifying any other solicitors’ trust account to which they would prefer payment. In such event the application for variation must be made by all such beneficiaries.

[16]No order as to costs is sought and none made.

Muir

Solicitors: