Estate of Hutton

[2024] NZHC 103

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-14

[2024] NZHC 103

UNDER

the Wills Act 2007

IN THE MATTER

of the estate of BERNARD ALLIN HUTTON

AND

IN THE MATTER

of an application by CHRISTOPHER JOHN CHARLES SIMPSON and MARK DANIEL SHERRY

Hearing:	(on the papers)
Counsel:	B R D Burke for Applicants
Judgment:	8 February 2024

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 8 February 2024 at 2.15 pm pursuant to rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

RE ESTATE B A HUTTON [2023] NZHC 103 [8 February 2024]

[1]Bernard Allin Hutton (Bernard) died on 26 November 2023.

[2]                 Bernard was survived by his de facto partner, Sarah Jane Harding (Sarah). He also had two children, Kirstie Jan Hamilton (Kirstie) and Matthew James Hutton (Matthew). He had no other children.

[3]The applicants are partners in the law firm Harmans.

[4]                 Bernard died having executed a last will dated 28 March 2012. Under that will the applicants were appointed executors and trustees and the residue of the estate was to be divided equally between Kirstie and Matthew.

[5]                 Before his death Bernard gave instructions to the applicant, Christopher Simpson, to prepare a new will. The evidence is that this will was prepared in draft and that its terms were confirmed by Bernard over the telephone on 24 November 2023. Bernard was in hospital at the time, and it was expected that arrangements would be made on the following Monday for him to sign the will.

[6]The terms of the unsigned will include:

(a)it revokes all previous wills;

(b)it appoints two partners of Harmans as executors and trustees; and

(c)it divides the residue of the estate into three parts, and gives two parts to Sarah and one part shared equally between Kirstie and Matthew.

[7]                 Bernard died on 26 November 2023, before the unsigned will could be executed.

[8]                 The applicants are applying to the Court for an order declaring Bernard’s unsigned will to be a valid will under s 14 of the Wills Act 2007 (the substantive application).

[9]However, the matters before me are:

(a)an application for directions as to service of the substantive application; and

(b)an application for an order under s 7 of the Administration Act 1969 appointing the applicants as temporary administrators in respect of Bernard’s estate.

Directions as to service

[10]             The applicants seek a direction that service of the substantive application be effected upon Sarah, Kirstie and Matthew. It appears they are the only persons who will be affected by the application, and I make a direction accordingly.

Temporary administration order

[11]             The applicants seek an order appointing them as temporary administrators under s 7 of the Administration Act. The evidence is that Bernard was the sole director and shareholder of Barson Distributors Ltd, a pet food business that continues to trade with a view to sale. I understand the company has several employees.

[12]             There are matters that need to be attended to associated with the business, including payroll, collecting funds, and paying creditors. I understand that the company also has lease obligations and there are contracts on foot with customers and suppliers which need to be maintained. The applicants are concerned that the business remains operating until a decision can be made on its long-term future whilst preserving its goodwill.

[13]Section 7 of the Administration Act 1969 provides:

7        Administration pending legal proceedings

(1)Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant of administration, are pending, the court may grant administration of the estate of the deceased to a temporary administrator, who shall, until he or she is discharged or removed under section 21, have all the rights

and powers of a general administrator, other than the right of distributing the balance of the estate remaining after payment of debts, funeral and testamentary expenses, duties, and fees, and every such temporary administrator shall be subject to the immediate control of the court and act under its direction.

(2)The court may, out of the estate of the deceased, grant to a temporary administrator appointed under this section such reasonable remuneration as the court thinks fit.

[14]             In Re Amundson the Court took the view that to make a temporary administration order the following should be shown:1

(a)there must be a legal proceeding touching the validity of the will of a deceased person or the grant of administration;

(b)it must be necessary to grant an order for interim administration to preserve and manage the assets of the estate pending the resolution of the proceedings; and

(c)the proposed appointee must be suitably qualified to perform the tasks of the administrator and must have sworn to faithfully administer the estate.

[15]             I am satisfied all these conditions are met in this case. It is also entirely sensible and appropriate that the applicants be appointed as temporary administrators of Bernard’s estate in circumstances where, regardless of which of his wills is ultimately admitted to probate, the applicants shall be the executors and trustees.

Result

[16]There shall be orders:

(a)directing service of the proceedings on Sarah Jane Harding, Kirstie Jan Hamilton and Matthew James Hutton

1      Re Amundson [2015] NZHC 1271.

(b)appointing the applicants as temporary administrators of Bernard’s estate under s 7 of the Administration Act 1969 with the rights of a General Administrator other than the right of distributing the balance of the estate remaining after payment of debts, funeral and testamentary expenses, duties and fees;

(c)the applicants’ reasonable costs in the administration pursuant to the temporary grant of administration of Bernard’s estate shall be paid out of the assets of the estate; and

(d)the order in (b) above shall remain in place until the grant of probate of Bernard’s last will or further order of the Court.

O G Paulsen Associate Judge

Solicitors:

Harmans, Christchurch

NOTICE REQUIREMENT

The solicitors on the record for the parties are promptly to provide a copy of this Minute to their clients (r 5.43).