Bartlett v Gillespie

[2023] NZHC 3691

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-2

[2023] NZHC 3691

IN THE MATTER

of an application for Probate in Solemn form

BETWEEN

MEGAN LISA BARTLETT and DAVID

JOSEPH EHLERS, as presumptive
Executors and Trustees in the Estate of Kay Annette Banning
Plaintiffs

AND AND

AND

WILLIAM PETER GILLESPIE

First Defendant

JOANNE HELEN BROOKS
Second Defendant

BERYL MAY BANNING

Third Defendant

Hearing:

(On the papers)

Counsel:

K J Jarvis for Plaintiffs

J G O’Neill for First Defendant

R M Lewis and J M Skinner for Second Defendant M J Badham for Third Defendant

C F M Toomey As Proposed Administrator

Judgment:

13 December 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Consent judgment)

BARTLETT v GILLESPIE [2023] NZHC 3691 [13 December 2023]

[1]    This proceeding concerns the late Kay Annette Banning (Ms Banning) who died on 15 May 2022. Ms Banning’s last Will is also dated 15 May 2022 (the Will) under which she appointed two partners of the law firm, Webb Farry Lawyers, as executors and trustees.

[2]    In this proceeding all parties with an interest in the estate in issue seek orders by consent.1

[3]The second defendant, Ms Brooks, lodged a caveat against probate of the Will.

[4]    The parties involved in the proceeding attended mediation and agreed to enter a compromise and to seek orders by consent for the Will to be admitted to probate under r 27.4 of the High Court Rules 2016 (the Rules)  and  for  Clare  Frances Marie Toomey (Ms Toomey) to apply for a grant of Letters of Administration with the Will annexed.

[5]    Consent orders have been sought on a without notice basis as all parties with an interest in the outcome of the application consent to the orders sought.

[6]    Ms Banning’s last Will has been produced to the Court. Ms Toomey is already the temporary administrator in Ms Banning’s estate by virtue of an interlocutory order made in January 2023.

[7]    Counsel for all interested parties have signed the joint memorandum seeking the orders by consent.

[8]I am satisfied it is appropriate that the consent orders be made.

[9]Accordingly, there are orders by consent as follows:

1      An Associate Judge may, pursuant to s 20(1)(g) of the Senior Courts Act 2016, enter judgment by consent or make orders by consent.

(a)Ms Toomey be granted letters of administration with the 2022 Will annexed;

(b)upon letters of administration being granted to Ms Toomey:

(i)Ms Toomey shall pay any tax, rates, insurance or other outgoings related to Perth Street or the estate;

(ii)the plaintiffs and Ms Toomey shall be paid their reasonable legal costs from the estate;

(iii)the Deceased’s property at 72 Perth Street, the Deceased’s car, contents, and dog “Scamps” shall be transferred   by   Ms Toomey   as   administrator   to Ms Brooks in her personal capacity;

(iv)Ms Tommey shall transfer the sum of $150,000 from the estate as a compromise to Mr Gillespie in satisfaction of any claim now or in the future under the 2022 Will, 2016 Will, the Trust, anything directly or indirectly related to the estate and trust, and legal costs;

(v)any residue of the estate shall be paid by Ms Toomey as administrator to Ms Brooks in her personal capacity;

(vi)Ms Brooks shall:

A.transfer in the deceased’s name a $50,000 donation to the charity Hato Hone St John, Mosgiel Branch (CC35053);

B.transfer in the deceased’s name a $50,000 donation to The Otago Kidney Society Incorporated (CC27497);

(c)the plaintiffs’ and Ms Toomey as administrator’s costs of this proceeding shall be met by the estate. All other costs shall lie where they fall.

Associate Judge Lester

Solicitors:

Webb Farry, Dunedin (for Plaintiffs)
O’Neill Devereaux, Dunedin (for First Defendant)

Lewis Mortimer Law, Auckland (for Second Defendant) Thomson Wilson, Whangarei (for Third Defendant)

Copy to:
C F M Toomey, Ross Dowling Marquet Griffin, Dunedin (Proposed Administrator)