Estate of Andrews

[2012] NZHC 2491

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-000677 [2012] NZHC 2491

UNDER  the Administraction Act 1969

IN THE MATTER OF     the estate of CATHERINE ANDREWS BETWEEN        IAN DOUGLAS TODD AND ROBIN JOY

MARTIN

Applicants

Hearing:         26 September 2012

Appearances: A Wilson for Applicants

R A Andrews in Person

Judgment:      26 September 2012

ORAL JUDGMENT OF VENNING J

Solicitors:           Fry Wilson Todd & Co, Huntly  [email protected]

Copy to:            R A Andrews, Auckland

Estate of Andrews HC HAM CIV-2012-419-000677 [26 September 2012]

[1]      There is an application before the Court for an order that probate of the Will of the deceased Catherine Andrews be granted to  Ian Douglas Todd  of Huntly, Solicitor and Robin Joy Martin of Sydney, New South Wales, Australia, Retired. The application seeks to exclude Raymond Anthony Andrews as an executor.   An order nisi was granted on 18 June 2012.

[2]      An application to show cause was listed for mention in the Chambers List on

18 July 2012.  The application had not been served by that date.  It then came before the Court on 14 August 2012 when Gilbert J made orders for substituted service. The application was then served and was called before the Court on 19 September

2012.  On that day Mr Barnsdale entered an appearance as a matter of courtesy on behalf  of  Mr Andrews.    The  matter  was  adjourned  to  today’s  date  to  give  Mr Andrews a last opportunity to put his case before the Court.  He was directed to file and serve any papers in opposition by 5.00 p.m. Friday 21 September 2012.   Mr Andrews did not meet that deadline but has filed an opposition and form of affidavit sworn on 24 September 2012.

[3]      The applicants pursue their application for an order granting them probate of the Will to the exclusion of Mr Andrews.

[4]      The application is supported by affidavits of Claudine Dorothy Johnstone, Robin Joy Martin, Ian Douglas Todd and Robin Joy Martin (jointly) and Leslie Graeme Alexander Currie, the Official Assignee.  The Official Assignee has sworn the affidavit because Mr Andrews is currently bankrupt, having been adjudicated bankrupt on 21 April 2008.  He is not currently discharged.

[5]      The deceased died on  29 January 2011.   Mr Todd and Ms Martin have deposed  that  Raymond Anthony Andrews  has  not  joined  in  the  application  for probate.   He has refused to do so and has refused to sign an instrument of renunciation. They also rely on the affidavit of Mr Currie, the Official Assignee.

[6]     During 2011 and following the death of the deceased there was some communication between the solicitors for the applicants and Mr Andrews, Solicitors, Kemps  Weir  in  Auckland.    It  is  apparent  that  the  solicitors  for  the  applicant

forwarded an affidavit including Mr Andrews as an applicant for probate.   On 12

July 2011 Kemps Weir returned that letter to the solicitors for the applicant advising they no longer held instructions from Mr Andrews.

[7]      The  Official  Assignee  has  deposed  that  on  receipt  of  a  letter  from  the solicitors for the applicants in July 2011 he wrote to Mr Andrews by letter of 8

August  2011  seeking his co-operation  in  relation  to  applying for probate.   The Official Assignee noted that he had been advised the other executors had signed the affidavit in June 2011.   The Official Assignee also noted that Mr Andrews had formerly instructed Kemps Weir to act for him but they had recently advised they no longer had instructions from Mr Andrews and had returned all the documents.  The Official  Assignee  reminded  Mr  Andrews  of  his  obligations  as  a  bankrupt  and directed him to attend to the execution of the affidavit.  That letter was served on Mr Andrews by a process server.

[8]      The solicitors for the applicants have confirmed by letter of 24 February 2012 to the Official Assignee that despite the Official Assignee’s direction Mr Andrews had failed and continued to fail to swear the affidavit in support of the joint application for probate.

[9]      It is now some 17 or 18 months since the date of the death of the deceased.

[10]     In his affidavit in opposition Mr Andrews refers to a number of issues which are not relevant to this particular application.   They seem to relate to difficulties between him and another sister, who is not an applicant for probate.  He also takes issue with the actions of the solicitors acting for the applicant.   He says that he visited the offices of the applicants’ solicitors and signed the relevant document.  He says that he is happy to be appointed as an executor and work in a pro-active way. He then raises a number of issues in relation to bank records being provided and seeks that all assets disposed of in the time that his sister, who is not an applicant held a power of attorney, be itemised.

[11]     The Official Assignee has deposed that if probate is granted and the estate distributed, to the extent any assets of the estate devolve on Mr Andrews they will vest in the Official Assignee. As a matter of law that must be so.

[12]     Mr Andrews appears to be in a position of conflict of interest.   There is a conflict between his personal interests and the position as executor of the Will. Despite the fact that Mr Andrews says he is willing to co-operate the clear record of correspondence that I have referred to would suggest otherwise.  I find it incredible and  do  not  accept  his  statement  that  he  attended  the  offices  of  the  applicants’ solicitors and signed the document in issue.  If he did had done so there would be no need for this application.

[13]     The cases he refers to, to support his opposition do not assist Mr Andrews’ position.   He refers to a case of Ruocco v Wright.[1]    That case is authority for the proposition that the party must have an obligation to apply for probate of the Will. In that case the deceased’s widow was executor and sole beneficiary.   All assets passed to her by survivorship.  There was no need to apply for probate.  It does not have any relevance to the present situation.

[1] Ruocco v Wright HC Christchurch CIV-2008-409-311, 16 December 2008.

[14]     In  the  case  of  Pearce  v  Pearce[2]   the  executor  did  not  think  he  had  any obligation to prove the Will.  The Court granted an order nisi calling on him to show cause why probate should not be granted.  Again that case is quite different to the present.

[2] Pearce v Pearce HC Auckland CIV-2009-404-993, 29 July 2009.

[15]     The last case relied on by Mr Andrews is the case of Tai,[3] an oral judgment of Baragwanath J in the High Court at Rotorua.  In that case the applicants deposed that a brother had refused to sign a deed of renunciation and would not contact the family to proceed with the probate application.   Despite the fact the papers had not been served Baragwanath J made an order under s 19 of the Administration Act 1969 granting probate to the applicant alone.  If anything that case supports the case of the

[3] Tai HC Rotorua CIV-2006-463-669, 7 February 2007.

applicants rather than Mr Andrews’ opposition.

[16]     As noted this application is made in reliance on s 19 of the Administration Act 1969.  In cases where the Court is satisfied that a 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.

[17]     On the evidence before the Court I am satisfied that Mr Andrews has failed to take steps required of him as the named executor in the Will.   He has had ample opportunity to  do  so.    For  whatever  reason  he  has  chosen  not  to  do  so.    The application is well founded.   Mr Andrews is also, as I have noted, in a potential conflict  of interest  situation  both  in  relation  to  his  position  as  an  undischarged bankrupt and also in relation to the issues he purports to raise arising out of his sister’s dealings in relation to his mother and father’s affairs.

[18]     I am satisfied the application is properly brought and final orders sought should be made.

[19]     I  make  orders  granting  probate  of  the  Will  of  the  deceased  Catherine Andrews to Ian Douglas Todd of Huntly, Solicitor and Robin Joy Martin of Sydney, New South Wales, Australia to the exclusion of Mr Raymond Andrews.

[20]     I will make an order for costs as to scale on the application.  I direct the costs are to be paid out of Raymond Andrew’s share of the estate.

Venning J