Churchward v Mills

[2021] NZHC 1430

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-485-616819

[2021] NZHC 1430

UNDER

the Administration Act 1969

IN THE ESTATE

of Eileen Margaret Sturm (Deceased)

BETWEEN

EILEEN JEANETTE CHURCHWARD

Applicant

AND

LIONEL STUART MILLS

Respondent

Hearing:

16 June 2021

Appearances:

R G Evans for Applicant

No appearance by or on behalf of the Respondent

Judgment:

16 June 2021

JUDGMENT OF WOOLFORD J

Solicitor:            Mrs Rhonda G Evans, Auckland

CHURCHWARD v MILLS [2021] NZHC 1430 [16 June 2021]

[1]    Eileen Jeanette Churchward is one of four children of Eileen Margaret Sturm (the  deceased)  who  died  at  Auckland  on  1  October  2019.  In  her  will  dated  10 December 2015, she appointed Ms Churchward and her three siblings as the executors and trustees of her will. She also gave the whole of her estate to her trustees upon trust to be divided equally between her four children.

[2]    Ms Churchward’s three siblings are Karl Stanley Kyle, Lionel Stuart Mills and Judith Frances Ill.

[3]    Difficulties have developed such that probate has not been granted and the administration of the deceased’s estate has not been advanced.

[4]    Ms Churchward, therefore, filed application for an order nisi calling upon her brother, Lionel Stuart Mills, of Arundel, Queensland, Australia, retired, one of the executors named in the will of the deceased, to show cause why probate of the will should not be granted to her alone, being one of the executors named in the will.    Ms Churchward’s two other siblings named as executors in the will have renounced their right to executorship.

[5]    On 11 May 2021 an order nisi was granted calling upon Mr Mills to show cause why probate of the will should not be granted to Ms Churchward alone. The Court also directed that unless Mr Mills showed cause at the sitting to be held at the High Court at Auckland on Wednesday, 16 June 2021, at 10.00 am in the Duty Judge list why probate of the will should not be granted to Ms Churchward alone, the Court may make such order for the administration of the estate and as to costs as appears just.

[6]    On 12 May 2021, Mr Mills was personally served at his home address with the order nisi, calling upon him to show cause why probate should not be granted to    Ms Churchward alone.

[7]    On 21 May 2021, Mr Mills sent an email to counsel for Ms Churchward and the Court confirming his consent to renounce his executorship on medical grounds. Mr Mills stated:

I advise that due to unforeseen damaging and distressing communications I received from my GP yesterday concerning my health, my circumstances are now such that prevents and excludes me from engaging further as Co- Executor in any capacity whatsoever, as my medical condition now dictates and demands precedence of my attention above otherwise anything else.

[8]    He asked counsel to notify the Court of the change of circumstances whereby he was unable to attend the hearing on 16 June 2021 and on medical grounds must renounce executorship. Mr Mills has, accordingly, not shown cause why probate to the will should not be granted to Ms Churchward alone.

[9]    In the circumstances, I make an immediate grant of probate appointing Eileen Jeanette Churchward as the administrator of the estate to enable the deceased’s estate to be administered in accordance with the terms of the will. I also make an order that the costs of the application in the sum of $3,500 plus GST together with the disbursements as approved by the Registrar be paid by the estate. I authorise the sealing of a draft order attached to the memorandum of counsel dated 11 June 2021.

Woolford J