Brown v Brown

[2018] NZHC 951

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-485-618569 [2018] NZHC 951

UNDER

Sections 5 and 19 of the Administration

Act 1969

IN THE MATTER

of the Estate of Dawn Isobel Brown

BETWEEN

KEITH GRAHAM REX BROWN Applicant/Plaintiff

AND

DENNIS FREDERICK BROWN Defendant

Hearing:	4 May 2018
Counsel:	D A Garrett and D M Foster for Applicant/Plaintiff No appearance by Defendant, Self Represented
Judgment:	4 May 2018

ORAL JUDGMENT OF WHATA J

Counsel/Solicitors:

David Garrett, Barrister, Kaukapakapa

Rainey Law, Auckland

And to:

The Defendant

BROWN v BROWN [2018] NZHC 951 [4 May 2018]

Introduction

[1]      Keith Brown and Dennis Brown are brothers.  Their mother, Dawn, passed away on 13 May 2017.  By her will dated 13 April 2012, Dennis was appointed the sole  executor  of  her  estate.    He  has  taken  no  steps  to  approve  the  will.    On

18 January 2018, Keith made an application for orders for letters of administration in his favour, together with an order nisi calling upon Dennis to show cause why probate of Dawn’s will should not be granted.   Dennis opposes the applications.   He says probate was not required due to the small amount of money and assets that Dawn had at the time of her death.  He also says he carried out his duties as executor in a moral and legal manner and was not derelict in respect of those duties.

Process

[2]      Dennis Brown did not appear at the hearing.  Mr Brown was notified of the hearing date; there is correspondence on the file indicating his awareness of the date, though expressing a preference for a different date.   There is also a Minute from Wylie J refusing Mr Garrett’s request for an adjournment without a formal application.

Mr Brown was aware of this. Accordingly, I see no reason to adjourn the matter.

Background

[3]      In her will Dawn gifted to Dennis her car, her decorated copper pot, a lounge mirror, a glass red mug and a Maori Bible. She gifted to Keith her silver spirits kettle and her pottery.  She made a gift of her jewellery to her grand-daughter, Lara.  The balance of her estate was entrusted to Dennis as trustee to sell and to convert into money to pay debts, funeral and testamentary expenses and other duties. The balance was to be held on trust for her children living at the date of her death. The validity of the will is not disputed.

[4]      Between  June  and  October  2017  there  are  various  exchanges  between

Mr Garrett, Keith’s lawyer, and Dennis about the estate.  In short, Dennis claims the estate is small and probate is unnecessary. At one stage Dennis states in an email:

Whatever personal items were left to my brother and which are still available for collection have been stored at my expense.  Rather than you telling me

what I am meant to do, I suggest you advise your client to make arrangements to pay his storage costs and then to make arrangements to sort and collect what is available.

[5]      Bank statements in Dawn’s name have also been produced. The cash balances total $6,554.06 as at the date of her death.  Dennis says these moneys were applied to medical care and funeral expenses.  He also now says various chattels were given away, either prior to his mother’s passing, or taken by the Salvation Army, of which she was an officer.

[6]      Keith does not accept that this is the full extent of his mother’s estate.  He recalls a conversation with her wherein she said that she had about $300,000 in savings in 2012 or 2013.  Dennis does not accept this.  He says that his mother came to live with him after she sold her house in 2008.  He says they built a home for her on his property at a cost of about $340,000 of which Dawn contributed $150,000 as a gift to him.

Threshold

[7]      Section 19 of the Administration Act states:

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.

[…]

[8]      As noted by Venning J in the Estate of Andrews,1 in cases where the Court is satisfied that the named executor has neglected or refused to show cause why they have not joined in or applied for probate the Court may make such order for the administration of the estate and costs as appears just.

[9]      On the evidence, Dennis has failed to take any steps to prove the will; s 19 is therefore prima facie engaged.  There is also evidence that Dennis failed to secure chattels that were to be left to Keith.

[10]     I may, nevertheless, refuse to make an order in circumstances where the estate is small and it would be pointless to incur the cost of obtaining probate. Based on the will itself, Dawn’s estate appears to have been modest at the time of her death.  The available bank statements also suggest that her estate was small. But there is evidence that Dawn sold her home in about 2008 and had about $300,000 in about 2012 and/or

2013; there is also evidence she gave $150,000 to Dennis to build a home on his property. The whereabouts of the balance of the remaining proceeds, if any, from the sale is unexplained.

[11]     There are also various allegations by Keith as to breach of fiduciary duty and that Dennis is not to be believed.  It is unnecessary to explore them in any length and this is not the proper forum for doing so because I am satisfied that, given Dennis’ failure to take steps to secure probate and/or to protect Keith’s interest in the estate, it is necessary, expedient and just to appoint an administrator.  The remaining issue is who should be appointed.   Keith accepts that he may have to carry the costs of administration and, if granted letters of administration, will stand in a fiduciary position in respect of Mr Brown.  Given that indication, I am prepared to grant letters

of administration to Keith.

1      Estate of Andrews [2012] NZHC 2491.

[12]     Keith seeks indemnity costs.   He complains that Dennis has been unduly obstructive, as is illustrated by various comments made by him in correspondence to

Mr Garrett.  However, I am concerned about his conduct in the proceedings.  It does appear to me that there was at least some merit to his claims that the estate was small so probate was not necessary.  On that basis, I simply make an order on a 2B basis in Keith’s favour.

[13]     Ordinarily I would make the order against the estate; however, given Dennis’ apparent obstructiveness and his failure to attend today, the order will be against him personally.

Addendum

[14]     I should have indicated that my order is conditional on satisfaction of the necessary formalities for the grant of letters of administration being satisfied.

............................................

Whata J