Estate of Cain

[2023] NZHC 2471

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-613684

[2023] NZHC 2471

UNDER

the Administration Act 1969

IN THE MATTER OF

the Estate of Janette Marie Cain

BETWEEN

OLIVIA MARIE NEWTON MAGEE

Applicant

Hearing:	4 September 2023
Appearances:	B D McDonnell for Applicant
Judgment:	5 September 2023

JUDGMENT OF HARLAND J

This judgment was delivered by me on 5 September 2023 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Re Cain [2023] NZHC 2471 [5 September 2023]

[1]                 This proceeding came before me in the Duty Judge List on 4 September 2023. The applicant seeks an order appointing her as the sole executor and trustee of her mother’s estate following a grant of an order nisi calling upon her co-executor to show cause why probate should not be granted to her alone.

[2]                 I granted the application and awarded costs on a 1A basis and disbursements as claimed. I now set out my reasons for doing so.

The application

[3]                 On 12 November 2022, Janette Marie Cain, died at Christchurch. Prior to her death she executed a will dated 26 October 2022. In her will the deceased appointed Peter Goodwin, her partner, and Olivia Magee, her daughter, as executors and trustees of her will. They and others stand to inherit from her estate which is a modest one comprising of her Kiwisaver, some personal belongings and likely a small amount of cash.

[4]                 Efforts have been made to engage Mr Goodwin to act as an executor. However, to date he has ignored requests to do so and has failed to sign a deed of renunciation. Meetings were scheduled to be held at the estate lawyer’s offices on 30 January and 20 February  2023 which were to be  attended  by Ms Magee and  Mr  Goodwin.   Mr Goodwin failed to attend either meeting and attempts to contact him about this have also been unsuccessful.

[5]                 Ms Magee’s affidavit outlines the efforts made to contact Mr Goodwin by email, but none have drawn any response. Ms Magee is not aware of Mr Goodwin’s current physical address.

[6]                 The proceedings were served on Mr Goodwin on 14 August 2023. The affidavit as to service has been provided to the Court. Mr Goodwin has taken no steps since being served with a copy of the proceedings.

Orders

[7]                 I have had regard to the matters included in s 19 of the Administration Act 1969 (the Act), and I am satisfied under s 19(2) of the Act that it is necessary and expedient to only appoint Ms Magee as executor and trustee of the deceased’s will.

[8]I grant the application and make the following orders:

(a)that probate of the will of the deceased dated 26 October 2022 is granted to Olivia Marie Newton Magee alone; and

(b)that the applicant be awarded costs on a 1A basis.

[9]                 In terms of the applicant’s schedule of costs, the sum of $1,987.50 is awarded. The disbursements as appear in the schedule are also ordered.

Solicitors:
Dallison & Co., Christchurch