Estate of Clamp - [2014] NZHC 540

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-242 [2014] NZHC 540

In the Estate of DONALD WILFRED CLAMP (DECEASED)

Hearing: On the papers

Appearances:

F V T Ah Mu

Judgment:

21 March 2014

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
4 pm on the 21st day of March 2014.

Solicitors: Strachan O’Connor, Johnsonville.

Re Clamp (deceased) [2014] NZHC 540 [21 March 2014]

[1] This is an application for review of the decision of a registrar. It raises an important point of probate practice on which there is surprisingly little authority.

[2] The deceased, Mr Clamp, died on 30 December 2010. He left a will dated

5 June 1981. Clause 3 of the will provides:

3. I APPOINT my wife MARY SHANNON FYFE CLAMP to be the Executrix and Trustee of this my Will if she shall survive me by the space of thirty (30) days but if she shall not do so or shall do so but shall fail to make application for or to obtain Probate of this my Will THEN I APPOINT

ROBERT ANTHONY ARMSTRONG Executor and Trustee of this my Will …

of Wellington, Solicitor to be the

[3] The widow of the deceased, Mrs Clamp, who is named as the instituted executrix, did not apply for probate of the will. She has ceased to be capable of managing her own affairs, and her personal affairs are administered by a manager appointed by an order of the Family Court at Wellington made on 24 0ctober 2013
under s 31 of the Protection of Personal and Property Rights Act 1988 (the Act).

[4] The substituted executor, Mr Armstrong, applied for probate. The registrar has refused a grant of probate for the following reasons:

The grounds on which the order is sought are not correct. The applicant is not executor according to the tenor of the will. He is named a substituted executor but cannot apply as the condition that his appointment is subject has not arisen.

An application should be made on behalf of the instituted executor by her property manager. The order appointing the property manager would need to include explicit power to apply for a grant (referred to in Re Dennis Page 90; [1993] 3 NZLR 86).

[5] The applicant has applied for a review of that decision by a judge under rr 2.11 and 27.14 of the High Court Rules.

[6] The essential question is whether the condition for substitution has been met. If it has, then Mr Armstrong, as substituted executor, is entitled to a grant of probate.

[7] The first named executor, Mrs Clamp, has survived for the requisite period, but has not made an application for probate. It is not clear on the evidence before me whether she was, at any time after the expiry of the 30-day survivorship period,

capable of making an application. The fact is that, whatever the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 540
Decision Date: 21 March 2014

CaseChat Overview and Summary

The case before the High Court of New Zealand was an application for review of a registrar's decision regarding the granting of probate for the estate of Donald Wilfred Clamp, who had passed away on 30 December 2010. The central issue in the case was whether the substituted executor, Robert Anthony Armstrong, was entitled to a grant of probate, as the named executrix, Mary Shannon Fyfe Clamp, had not applied for probate and had become incapacitated. The court needed to determine if the condition for substitution had been met.

The court examined the language of the will and found that it was clear that the testator intended for the substituted executor to be appointed if the instituted executrix failed to apply for probate. The court also considered the relevant case law and found that the condition for substitution could be met in circumstances where there had been no renunciation of probate and no other overt act indicating a refusal to apply for probate by the instituted executrix. The court concluded that the testator must have intended that in these circumstances, the instituted executrix had failed to apply, allowing the substituted executor to apply for probate.

The court found that the pre-condition to the appointment of the substituted executor had been satisfied, and the appointment of Mr Armstrong as executor under clause 3 of the will had become effective. The court set aside the registrar's decision and directed that the application by the substituted executor be considered by the registrar in accordance with this decision.

Orders