Blaikie HC Dunedin CIV-2011-412-465

[2011] NZHC 921

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2011-412-465

UNDER  The Wills Act 2007

IN THE MATTER OF     the Estate of Robert William Blakie

Hearing:         On the papers

Counsel:         F B Barton for the Applicants

Judgment:      19 August 2011 at 11:00 AM

I direct the Registrar to endorse this judgment with a delivery time of 11am on the

19th day of August 2011.

JUDGMENT OF MACKENZIE J

[1]      This is an application under s 31 of the Wills Act 2007 to correct a will.  The correction is required because the appointment of executors was in a form which has been held to be invalid.[1]   Clause 2 of the will provides:

I APPOINT  two  of  the  Partners  at  the  date  of  my  death  in  the  firm  of ANDERSON LLOYD CAUDWELL, Solicitors, or in the firm which at that date has succeeded to and is carrying on its practice (“my Trustees”) to be the EXECUTORS AND TRUSTEES of my Will.

[1] Re Mansfield HC Auckland CIV-2008-404-7115, 10 March 2009.

[2]      The application seeks the correction of that clause to read:

I appoint the partners at the date of my death in the firm of Anderson Lloyd, solicitors of Dunedin, to be the executors and trustees of this my Will and I express the wish that two and only

two of them shall prove my Will and act initially in its trusts.

[3]      The application was made on a without notice basis.  The first question to be considered is whether that is appropriate.  In Re Zhu I said:[2]

The first question for consideration is whether the application under s 14 may properly be considered on a “without notice” basis.   Rule 7.46 of the High Court Rules applies.  I have dealt with a similar issue in Re Hickford and Re Macneil.   The most important consideration in determining the appropriate procedure is the need to ensure that all persons who may be affected by the making of an order have a proper opportunity to be represented in the proceedings.

[2] Re Zhu HC New Plymouth CIV-2010-443-21, 24 March 2010.

[4]      Rule 7.46 provides

Determination of application without notice

(1)       The Registrar must refer an application without notice to a Judge for direction or decision.

(2)       The  Judge,  on  receiving  an  application  without  notice,  must determine whether the application can properly be dealt with without notice.

(3)       The Judge may determine that an application can properly be dealt with without notice only if the Judge is satisfied that—

(a)      requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant; or

(b)      the application affects only the applicant; or

(c)      the application relates to a routine matter; or

(d)      an enactment expressly permits the application to be made without serving notice of the application; or

(e)      the   interests   of   justice   require   the   application   to   be determined without serving notice of the application.

(4)       If the Judge determines that the application can properly be dealt with without notice, the Judge may—

(a)      make the order sought in the application; or

(b)      make  any  other  order  that  the  Judge  thinks  just  in  the circumstances; or

(c)      dismiss the application.

(5)       If the Judge determines that the application cannot properly be dealt with without notice, the Judge may—

(a)       give directions as to service and adjourn the determination of the application until the application has been served on persons who are affected by the application; or

(b)       if the Judge considers that the application has no chance of success, dismiss the application.

[5]      The  present  application  is  made  on  the  basis  that  the  appointment  of executors is, as presently contained in the will, invalid.  If the will is not amended, it would be necessary to apply for letters of administration with will annexed.   The person entitled to a grant of administration would be determined according to the priority in r 27.26 of the High Court Rules.  Because of that, it cannot be said that the application affects only the applicant.  Nor, in my view, can the application be said to relate to a routine matter.  There is no enactment expressly permitting the application to be made without serving notice of it.   Accordingly, I may determine that the application can properly be dealt without notice only if I am satisfied that requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant or that the interests of justice require the application to be determined without serving notice of the application.

[6]      The application as filed contained insufficient information for me to be able to  assess  those  matters.     Accordingly,  I  issued  a  minute  requesting  further information on the position of the persons otherwise entitled to apply for administration.   Counsel has advised that the persons entitled to a grant of administration would be an elderly brother and  sister of the deceased,  and two friends who are residuary beneficiaries. The estate is a small one.

[7]      In the circumstances I am satisfied that the interests of justice require the application to be determined without serving notice of the application.

[8]      In the light of some comments in counsel’s memorandum, I consider that it is desirable to emphasise that counsel filing a without notice application has responsibilities under r 7.23 to be satisfied that there is a proper basis for seeking the order in an application without notice.   It is desirable that the memorandum in support of the application should set out the basis upon which counsel has reached

that view, so that the judge has the necessary material to form his or her own conclusion on the matters in r 7.46.

[9]      With those comments, having determined that this application may properly be determined on a without notice basis, I turn to the substantive application.

[10]     The application  is  supported by affidavits  from  Mr Black,  the partner in Anderson Lloyd responsible for estate matters, and Ms Smith, the legal executive who prepared  the will.   On the basis of their evidence,  I am satisfied  that the intention of the testator was to appoint two of the partners in the firm to be his executors.  The wording of the clause makes that intention clear to a lay reader.  The reasons why the wording does not achieve that intention are fully explained by

Asher J in Re Mansfield.3    They are somewhat technical, and the point would not

have been apparent to the testator.  Accordingly, I am satisfied that the will does not carry out the will-maker’s intentions because it does not give effect to the will- maker’s instructions.

[11]     There will be an order correcting cl 2 of the will to read:

I appoint the partners at the date of my death in the firm of Anderson Lloyd, solicitors of Dunedin, to be the executors and trustees of this my Will and I express the wish that two and only two of them shall prove my Will and act initially in

its trusts.

Solicitors:           Anderson Lloyd, Lawyers, Dunedin

“A D MacKenzie J”

3      Re Mansfield High Court Auckland CIV-2008-404-7115, 10 March 2009.