Armstrong v Wardle-Vaughan

[2017] NZHC 1862

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2017-485-605806 [2017] NZHC 1862

IN THE ESTATE OF

FRANCES LORRAINE CECELIA REA

late of Auckland, retired, deceased

BETWEEN

LOUISE DOROTHY ARMSTRONG Applicant

AND

MARIE WARDLE-VAUGHAN Respondent

Hearing:	3 August 2017 (Held in Auckland)
Counsel:	D K Wilson for Applicant No appearance of respondent
Judgment:	8 August 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 8 August 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Swayne McDonald Lawyers, Auckland

ARMSTRONG v WARDLE-VAUGHAN [2017] NZHC 1862 [8 August 2017]

[1]      Louise Armstrong made an application for an order nisi calling upon Marie Wardle-Vaughan, the executrix of Frances Rea’s estate, to show cause why probate should not be granted to the applicant alone.   The Registrar made an order nisi calling upon Ms Wardle-Vaughan to show cause why probate should not be granted to Ms Armstrong on 25 May 2017.  Ms Wardle-Vaughan, was directed to show cause at a sitting of this Court at 9.00 am, 3 August 2017.  She did not appear.  I made the orders as sought in open Court. This is my judgment with reasons.

Background

[2]      Frances Lorraine Cecelia Rea died on 22 September 2016.   In her will she identified a Louise Wood (now known as Louise Dorothy Armstrong) and Marie Wardle-Vaughan as executrixes of the will.   Meetings were held at the offices of Swayne  McDonald,  the  lawyers  for  the  deceased,  on  9  November  2016  and

6 December  2016,  at  which  Ms  Wardle-Vaughan  refused  to  execute  probate documents.  There was also evidence that Ms Wardle-Vaughan has not responded to requests to sign a deed of renunciation.

[3]      Three months has expired since the passing of the deceased and the Registrar therefore made an order nisi calling upon Ms Wardle-Vaughan to show cause as to why probate should not be granted to Ms Armstrong alone.

Assessment

[4]      Sections 19(1) and (2) of the Administration Act 1969 provide:

19       Proceedings where executor neglects to prove will

(1)       In any case where any executor named in a will neglects or refuses to prove the will, or to renounce probate thereof, within 3 months from the death of the testator, the court may, upon the application of any other executor or executors or of any person interested in the estate or of Public Trust or of the Māori Trustee or of any creditor of the testator, grant an order nisi calling upon the executor who so neglects or refuses to show cause why probate of the will should not be  granted to that  executor  alone or with  any other  executor  or executors or, in the alternative, why administration should not be granted to the applicant or some other person.

(2)       Upon proof (whether by affidavit or otherwise) of service of the order, or upon the court dispensing with service of the order, if the executor who is so called upon does not appear or upon cause  being shown, the court may make such order for the administration of the estate, and as to costs, as appears just.

[5]      Proof of service of the order nisi has been produced.  Ms Wardle-Vaughan did not  attend  Court  this  morning.    Mr Wilson  for  Ms Armstrong  advised  that  all necessary steps have been taken.

[6]      Accordingly, I am satisfied in accordance with s 19 that probate of the will should be granted to Ms Armstrong alone.