Estate of Hall

[2014] NZHC 2510

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2013-409-000957 [2014] NZHC 2510

IN THE MATTER OF

Estate of WILLIAM DAVID HALL

BETWEEN

PHILIP DALLAS BEAN and DAVID ANDERSON TAIT

Applicants

Hearing:	(On Papers)
Judgment:	23 October 2014

JUDGMENT OF WHATA J

[1]      This is an application for grant of probate in solemn form of the last valid Will of William David Hall.   The application is made in reliance on s 5 of the Administration Act 1969 and r 27.6 of the High Court Rules.   The application foreshadowed that testamentary capacity and undue influence may be an issue.

[2]      Orders were made for the purposes of service of the proceedings on 15 May

2013 by Associate Judge Osborne.   Those directions were complied with to the extent possible resulting in a statement of defence having been filed by Edwina Scott (first respondent), Philip Bean, Gaye Bean, David Bean, Thirza Bean, Julie Hall, Kathryn Hall, Robyn Bean, Richard Bean (second respondents) and Shirley Walter (third respondent).  A memorandum was filed for Margaret Bean recording that she supported the position of her children, and nieces and nephews, that she does not wish to take an active part in the proceeding as a party, but that she would be willing to give evidence if required.

[3]      In addition, memoranda and/or appearances reserving rights were filed by

Oxfam New Zealand, The Fred Hollows Foundation New Zealand and the National

Heart Foundation.  An interest in the proceedings was also informally registered by

Estate of HALL [2014] NZHC 2510 [23 October 2014]

Ronald McDonald House Charities.   Mr Fairclough also informs me that Winston and Fiona Bean (who were also directed to be served) elected not to take any steps.  I have no information before me regarding what came of informal notification to the Cancer Society of New Zealand Inc.

[4]      The active parties, together with some of the beneficiaries, agreed to engage in an ADR process which has proven to be fruitful.  By way of memorandum dated

22 September 2014, the parties record their agreement to the grant of probate in solemn form in relation to the last Will of the deceased dated 2 December 2009.

[5]      The memorandum further records the following agreement:

5.That the legacy provisions of the Will set out in clause 4 be given effect with the exception of the legacy in clause 4.1 to Margaret Kate Bean. The bequest in clause 5 be given effect.

6.That clause 6.2 be amended to divide the residue in the following manner:

6.1.     Shirley Margaret Walter as to 42%;

6.2.     Edwina Marianne Scott as to 38%.

6.3.     Margaret Kate Bean as to 20%;

7.        From each of the residuary shares of Shirley Margaret Walter and

Margaret Kate Bean the trustees be directed to pay $5,000.00 (total

$10,000.00)   to   Wynn   Williams   Lawyers   trust   account   as   a contribution to the costs incurred by the second respondents.   All

other respondents and parties directed to be served shall bear their

own costs.

[6]      The joint memorandum states that the position of Winston Bean and Fiona Bean, Ronald McDonald House, National Heart Foundation, Oxfam New Zealand and The Fred Hollows Foundation New Zealand as legatees are not to be affected by the agreement reached between the parties.

Result

[7]      I am satisfied in that it is appropriate to grant probate in terms of ss 5 and 6 of the Administration Act 1969.  I am further satisfied that there should be an order that

the last Will of William David Hall, deceased, dated 2 December 2009 has been proved in solemn form to be a valid Will for the following reasons:

(a)      The executors named in the Will have sworn that they believe that the Will is the deceased’s last Will and that they will faithfully execute the Will;

(b)All relevant persons affected by the grant of probate have had the opportunity to challenge or otherwise comment on the proposed grant;

(c)      Testamentary  capacity  and  undue  influence  are  no  longer  issues pursued by any party;

(d)The agreement reached between the parties (comprising beneficiaries under the Will) is evidence of their support of the grant; and

(e)       The legatees that are not party to the agreement are unaffected by it.

[8]      Accordingly, there shall be an order that the last Will of William David Hall, deceased, dated 2 December 2009, has been proved in solemn form to be a valid Will.    Probate  thereof  is  directed  to  issue  to  Philip  Dallas  Bean  of Ashburton, Chartered Accountant,  and  David Anderson  Tait,  of  Christchurch,  Solicitor,  the executors named in the Will.   Philip Dallas Bean and David Anderson Tait shall be appointed administrators of the deceased’s estate.   I make no order as to costs.

[9]      For completeness, without in any way suggesting that the agreement reached and recorded in the joint memorandum is not enforceable, the grant of probate does not purport to validate the agreement reached between the beneficiaries.

Solicitors:

Cavell Leitch, Christchurch

Price Barker Berridge, Waitakere

Wynn Williams, Christchurch

Murray Kay, Pukekohe

Fletcher Vautier Moore, Nelson

DLA Phillips Fox, Wellington

Argyle Welsh Finnigan, Ashburton