Estate of Edmonds

[2025] NZHC 1865

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-613039

[2025] NZHC 1865

IN THE ESTATE

of MARY TAHUHU EDMONDS

Deceased

Hearing:

30 May 2025

Appearances:

C Light for Applicants

Dora Edmonds in person (by telephone)

Judgment:

9 July 2025

JUDGMENT OF McHERRON J

[1]    Mary Tahuhu Edmonds died on 9 April 2022. Her last will is dated 6 April 2011. In her will, Mary appointed three of her daughters Veronica, Rachel and Dora as executors.1

[2]    It is more than three years since Mary’s death, but probate has still not been granted. Veronica and Rachel have attempted to obtain Dora’s agreement and cooperation in applying for probate together with them or, alternatively, for her to renounce probate. Neither of these options has been acceptable to Dora and so a stalemate has been reached.

[3]In monetary terms, it is a small estate with a current net asset position of about

$155,000. There are seven residuary beneficiaries. The costs of litigation are draining what remains of the estate. Veronica and Rachel ask the Court to grant probate of the

1      For convenience, I use Mary and her daughters’ first names in this judgment, without meaning any disrespect.

RE ESTATE OF EDMONDS [2025] NZHC 1865 [9 JULY 2025]

will to them, to the exclusion of Dora, so they can administer and distribute their mother’s estate to the beneficiaries without further delays and costs.

[4]    On 24 October 2024, the applicants sought an order nisi that probate of Mary’s will be granted to them.2 On 5 November 2024, the Registrar issued an order nisi that unless Dora showed cause why the order should not be made absolute, probate of Mary’s will would be granted to the applicants.

Dora’s position

[5]    Dora, who refers to herself as: dora-elizabeth-mary:house of edmonds: living sovereign, asserts that her sisters have breached their fiduciary duty in their haste to distribute their mother’s property. I asked Dora to specify which property she was referring to. She said: surfboards, clothing, bedding and a bed, a leather lounge suite, all her personal things, jewellery, including a wedding ring, a ring given to her by Dora’s brother, cold press juicers and her taonga tuku iho to be utilised on the whenua to benefit the whānau. Dora also expressed concerns that her sisters had broken into a storage unit to give them access to their mother’s chattels and that Rachel had taken

$20,000 out of Mary’s bank account.

[6]    Dora is concerned that her mother was not in a position to make decisions for herself in the period leading up to her death. Dora disputes that the withdrawal of money was done with her mother’s permission.

[7]    Dora also expressed concerns about matters before her mother died, including the way in which Dora was informed of her mother’s death, that arrangements made for her tangi were not in accordance with tikanga or her mother’s wishes and that there was inadequate consultation with Dora and other family members.

[8]    Dora considers that she is the appropriate person to be executor of Mary’s will, not her sisters. Only she, in conjunction with her hapū native counsel, will be able to ensure that Mary’s will is “done to the letter”.

2      Administration Act 1969, ss 5 and 19; High Court Rules 2016, r 27.4 and following.

Veronica and Rachel’s response

[9]    Veronica and Rachel say that Dora lacks appreciation for the duties of an executor to apply for probate and carry out the responsibilities associated with that role. They say that not only is Dora inappropriate to be an executor because of her unwillingness to cooperate with her sisters in the administration of their mother’s estate, but that the way Dora interprets the will is inconsistent with what Mary’s will actually provides. In particular, Dora intends to apply the assets of the estate towards building a garage and water tank on land which Dora occupies. While this was one of the things that Mary’s will provided for, it was in a clause of the will that has adeemed and is no longer operative because Mary sold her home when she was alive.

[10]   In relation to the chattels identified by Dora as being of concern, Veronica and Rachel have provided affidavit evidence explaining various decisions that were made in respect of Mary’s chattels after her death. They say these decisions were necessary in order to avoid incurring ongoing and expensive storage costs. The applicants’ counsel, Mr Light, submitted that the people on the spot had to make decisions about chattels. Mr Light added from the bar that the two leather lounge suites Dora referred to are currently at Rachel’s house.

My assessment

[11]   Section 19 of the Administration Act 1969 provides that if an executor neglects or refuses to prove the will or renounce probate within three months after the will- maker’s death, the Court may call on the executor to show cause why probate should not be granted to the applicant or some other person.

[12]   Having reviewed the affidavit evidence, I am satisfied that the applicants have established that Dora has neglected and refused to prove the will or renounce probate. So I accept that s 19 is engaged. I do not consider that Dora has shown cause why probate should not be granted to Veronica and Rachel. The applicants have sworn an affidavit that they will faithfully execute the will in accordance with the law. Moreover, if required by the Court to do so, they will file an accurate inventory and account of the deceased’s estate. The applicants say that all of the residuary beneficiaries (Mary’s children) will receive an equal share of the remaining funds in

her Cooperative Bank account. They will also reasonably distribute the remaining chattels that have not yet been distributed between the family members as provided in Mary’s will. I accept Mr Light’s submission, which is supported by the intention expressed in Rachel’s affidavit, that the speedy distribution of the estate, without further unnecessary legal costs is in the best interests of all beneficiaries.

[13]   Dora too says that she will faithfully implement her mother’s will. However her expressed intention to apply the balance of the estate towards building a garage and water tank on Māori land at Whangārei is problematic, for reasons I will shortly identify. First, it is necessary to set out the will itself:

THIS IS THE LAST WILL of me MARY TAHUHU EDMONDS of

Palmerston North in New Zealand, Widow.

1.I REVOKE all previous wills and codicils.

2.I APPOINT my daughters DORA ELIZABETH MARY EDMONDS of Queensland, Australia,       VERONICA                   HINEMOA    JOSEPHINE

EDMONDS of Palmerston North and RACHEL CATHERINE MARY

BIRCH of Russell or the survivor of them ("my trustees") to be my Executrices and Trustees.

3.I GIVE AND BEQUEATH to my trustees UPON TRUST my household goods and contents to return to the donors thereof such items gifted to me over the years and the balance thereof to be reasonably distributed between family members or sold or otherwise dealt with as my trustees think fit.

4.I GIVE DEVISE AND BEQUEATH to my trustees my residence at 95A Vogel Street, Palmerston North to sell same and to stand possessed of the net sale proceeds and apply same as follows:

(a)      To erect on my Maori land at Whangarei a double garage and water tank for use of by all of my family members; and

(b)      To erect on the parcel of the Maori land owned by my sister Emma Cribb in Whangarei a single garage and water tank; and

(c)      The sum of TEN THOUSAND DOLLARS ($10,000.00) to my sister Tamara Brown.

(d)      The sum of FIVE THOUSAND DOLLARS ($5,000.00) to Katarina Temomo.

(e)      For the balance remaining to form part of and fall into my residuary estate.

5.In respect of my interest in Maori land (at the date hereof known to be in five separate parcels) I GIVE DEVISE AND BEQUEATH a parcel

to the following of my children, namely Dora, Veronica, Rachel, David and Michael with Dora to have the first choice and for my trustees to decide which of my said children to take ownership of the other parcels. If there are more than five parcels then my trustees shall decide the transferee of same.

6.I TRANSFER AND APPOINT all other property owned by me ("my residuary estate") to my trustees to deal with as I direct.

7.I DIRECT my trustees to pay all just debts, funeral, graveyard, monumental and administration expenses and to charge payment against my residuary estate and to divide the balance equally between my children David, Patrick, Dora, Veronica, Therese, Rachel and Michael who shall survive me and if more than one as tenants in common in equal shares..

8.I DIRECT that my body be buried in the Kaahia cemetery, Hora Hora, Ngunguru near my grandmother Peti. It is my wish and desire for the ashes of my late husband Peter to be interred with me.

9.My trustees have the following discretionary power (in addition to any other powers authorised by law):

9.1     To complete distribution by cash payment or by the transfer of specific assets (or by both methods).

9.2     To sell any property by any method and on any conditions.

9.3     To postpone the sale of any property for any period.

[14]   The clause that is relevant to Dora’s expressed intentions to apply the funds of the estate to building a double garage and water tank on Māori land at Whangārei is cl 4. Under that clause, Mary gave a specified residential property to the executors to sell and to use the net sale proceeds for various purposes, including to build the double garage and water tank.

[15]   However, Mary sold her residence at 95A Vogel St in October 2017 and settlement took place in December 2017, some four and a half years before her death.

[16]   Because this asset had ceased to be part of Mary’s property before the date of her death, ademption applies to the whole of cl 4. As Mr Light submits, the rule stated by Blair J in Re Bedgood is applicable: where a will includes a specific legacy to be paid out of the proceeds of specified property, the rule is that if at the date of their

death the testator has no property answering that description, the legacy fails.3 That rule applies even if, as in Re Bedgood, part of the proceeds are still identifiable (in that case, part of the payment for the property was by way of loan secured by first mortgage over the property, which was still subsisting when the deceased died).

[17]   In addition, s 20 of the Wills Act 2007 provides that unless the will otherwise makes clear, words in the will disposing of property apply to circumstances as they are when the will-maker dies. There is no contrary intention in Mary’s will, which clearly states that Mary’s property is to be sold after her death (see cls 3, 4 and 9). In addition, s 21 of the Wills Act provides that a disposition in a will of land must be read as referring to the interest in the land to which the will-maker is entitled when he or she dies. Mary no longer had an interest in this land as at the date of her death and therefore, again, cl 4 of the will no longer applies.

[18]   I also consider that the principles applicable to an application for the removal of an executor under s 21 of the Administration Act are relevant. The estate should be properly administered in the best interests of the beneficiaries. Ultimately the question is what is expedient in their interests.4 Expedience is a lower threshold than necessity, importing considerations of suitability, practicality and efficiency. Misconduct, breach of trust, dishonesty, or unfitness need not be established. Hostility between administrators/trustees and beneficiaries may assume relevance if and when it risks prejudicing the interests of beneficiaries.

[19]   Application of these principles suggests that the only expedient course of action in the present circumstances is to affirm the appointment of Veronica and Rachel as executors, to the exclusion of Dora. I accept that doing so is realistically the only way in which this relatively modest estate can be properly administered in the best interests of the beneficiaries. The administration of the estate is not expected to be complex or complicated. Veronica and Rachel will be assisted by a law firm.

3      Re  Bedgood  [1929] NZLR 194 (SC) at 197. See also Nevill’s Law of Trusts, Wills, and Administration (LexisNexis) at [15.7.6]; Laws of New Zealand, Wills, LexisNexis, [135]–[136].

4      Farquhar v Nunns [2013] NZHC 1670, at [13]; Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145.

[20]   Based on the evidence, I am satisfied Veronica and Rachel took reasonable steps to involve Dora in the process of gathering together and dealing with their mother’s chattels, but that Dora did not take up their offer to involve her. To the extent that the chattels have been disposed of, I am satisfied that they are likely to have been of minimal value and that it was a valid decision to dispose of them in a way that would minimise costs to the estate, including storage costs.

[21]   Ultimately, I accept the applicants’ submission that Dora’s motivation in seeking appointment of herself as executor is self-interested and contrary to Mary’s intentions as clearly expressed in her will. Contrary to those intentions, Dora wishes to use the estate’s funds to achieve a purpose that is no longer provided for in the will, given the change of circumstances prior to Mary’s death. If the funds were to be used for the former cl 4 purpose, there is likely to be little if any money left over afterwards. That would be contrary to the provisions of the will and would prejudice the interests of the other beneficiaries of the estate.

Conclusion

[22]   Accordingly, I make an order granting probate of the will of Mary Tahuhu Edmonds to Veronica Hinemoa Josephine Fletcher (named in the will as Veronica Hinemoa Josephine Edmonds) formerly of Palmerston North, now of Whangārei, housewife and Rachel Catherine Mary Birch formerly of Russell, now of Whangārei, hospital administrator, to the exclusion of Dora Elizabeth Mary Edmonds. The order is conditional on satisfaction of any other necessary formalities for the grant of probate being satisfied.

[23]   I make an order for costs according to category 2B on the application. These costs are to be paid out of Dora’s share of the estate.

McHerron J

Solicitors:
Fitzherbert Rowe, Christchurch for Applicants