Estate of Butterworth

[2023] NZHC 516

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-485-607674

[2023] NZHC 516

IN THE ESTATE OF

THELMA ELIZABETH BUTTERWORTH

formerly of Auckland, in New Zealand,

latterly of Otivar, Granada in Spain, Retired (Deceased)

Hearing:	On the papers
Counsel:	M N Tolich for Applicant A McDonald for Caveator
Judgment:	15 March 2023

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 15 March 2023 at 3.30 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors:           Corban Revell (M N Tolich), Auckland

A McDonald, Auckland

Re Estate of Thelma Elizabeth Butterworth [2023] NZHC 516 [15 March 2023]

[1]    The deceased, Thelma Elizabeth Butterworth, died at Otivar, Granada, in Spain, on or about 10 December 2021. She left a will dated 9 March 2018. The executors named in the will were Sarah Elizabeth Munro (incorrectly spelt Monro in the will), Alexandra Louise Monteith and Michael John Butterworth. Michael was one of the sons of the deceased.

[2]    A caveat against the grant of probate was filed on 16 May 2022 by a solicitor, Peter Oliver, acting for Allan Keith Faber Butterworth, also a son of the deceased.

[3]    The named executors sought an order nisi for the grant of probate of the will and a date so that Allan Butterworth could show cause why probate should not be granted to them.

[4]    An order nisi was made by the Senior Deputy Registrar of this Court in Auckland on 12 December 2022, with a first call on 15 February 2023 at 10:00 am. The day prior to 15 February 2023, the Registry received an email from counsel for the caveator, indicating that he had not been aware that the matter was to be called on 15 February. That file was placed before Lang J and he directed that the proceeding be removed from the list and relisted for mention on Wednesday, 15 March 2023 at 10:00 am.

[5]    On 13 March 2023, counsel for Allan Butterworth gave notice in writing withdrawing the caveat.

[6]    All counsel have confirmed that costs can lie where they fall as between the estate and Allan Butterworth as caveator.

[7]    Counsel for the executors has requested that probate in common form should now be granted.

[8]    Pursuant to s 61(c) of the Administration Act 1969 if the caveat is withdrawn before the day named in the order nisi, or the date which the order is enlarged, an order nisi can be made absolute.

[9]    I am satisfied that it is appropriate to so order. The order nisi dated 12 December 2022 is made absolute and probate in common form is granted to the named executors.

[10]   There is no order as to costs as between the estate and Allan Butterworth. Costs are to lie where they fall.

Wylie J