Estate of Kinraid

[2024] NZHC 1114

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-62

[2024] NZHC 1114

UNDER

the Administration Act 1969

IN THE MATTER

of an application under section 9B(2) for directions to continue acting as administrator

GRAEME JOHN KINRAID as the executor of the estate of ALISON ELIZABETH KINRAID

Applicant

Hearing:	6 May 2024
Appearances:	N R Harvey for Applicant
Judgment:	7 May 2024

JUDGMENT OF PRESTON J

This judgment was delivered by me on 7 May 2024 at       pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date……………

ESTATE A E KINRAID [2024] NZHC 1114 [7 May 2024]

Introduction

[1]                 Graeme John Kinraid applies, on notice and without opposition, for an order directing him to continue acting as administrator (executor) and complete administration of the estate of his late mother, Alison Elizabeth Kinraid.1

Background

[2]                 Alison’s will appointed Irvine Nelson Kinraid (Irvine) as executor and trustee. However, when Alison passed away Irvine was not mentally capable of applying for probate of the estate.

[3]                 As Irvine’s lawful attorney, Mr Kinraid applied for probate and was appointed executor of the estate by this Court on 22 November 2023.

[4]Irvine died on or about 5 November 2023.2

[5]                 By operation of law, as Graeme was appointed executor in his capacity as Irvine’s attorney the grant of probate was limited until three months from the date of Irvine’s death.

[6]                 The application was brought in time. Graeme, who is based in Australia, has taken significant steps in but has not yet completed the administration of his mother’s estate.

[7]                 This Court directed that the application be served on interested parties: the beneficiaries under the estate, Alison’s grandchildren Jennifer Sarah Kinraid, Christine Joanna Kinraid, David John Kinraid and Heather Margaret Hutchings and Margaret Alison Duffy as a potential beneficiary of the estate of Irvine Kinraid (subject to the status of the Margaret Kinraid Family Trust).

1      I refer to the deceased and other family members by first name for reasons of clarity.

2      Irvine left a will appointing Mr Kinraid and solicitor Jennifer Kay Turner of Wynn Williams as executors of his estate.

[8]                 All interested parties have been served. None have taken any steps. Mr Taylor, counsel for Graeme confirms that all the interested parties support the order as sought.

Discussion

[9]Section 9B of the Administration Act 1969 (Act) relevantly provides:

9B Further provisions relating to grant of administration to holder of enduring power of attorney

…

(2)If the donor dies while the attorney is acting as administrator, the attorney must within 3 months after the date of death of the donor, apply to the court for directions relating to whether the attorney may continue to act as administrator.

(3)If an application is made under subsection (2), the court may –

(a)direct the attorney to continue to act as administrator; or

(b)remove that attorney as administrator under section 21.

…

[10]             In Re Sowry this Court determined an application in similar circumstances as this case. 3 The applicant was appointed as administrator of the estate of Mr Sowry due to his named executor, Ms Sowry’s mental incapacity. Ms Sowry then died and the applicant was appointed administrator of her estate, also. Gwyn J granted an application without notice for an order confirming the appointment as executor of  Mr Sowry’s estate.

[11]             The deceased’s wishes are also relevant. If Irvine had predeceased Alison, Alison’s will appointed Graeme (together with two solicitors) as her executor and trustee. I accept, as counsel submits, this demonstrates the trust and confidence the deceased had in Graeme to administer her estate and, had circumstances been different, he would have been appointed executor in the normal way.

3      Re  Sowry  [2021]  NZHC  3355.    In Re Sowry the Court considered ss 9B and 13 of the Administration Act 1969. Section 13 of the Act has no application on the facts in this proceeding.

[12]             I am satisfied that it is in the interests of justice to grant the order. The application is well founded and necessary to enable completion of the administration of Alison’s estate. No interested party wishes to oppose Mr Kinraid’s application.

Conclusion

[13]             I am satisfied the order should be granted to enable Mr Kinraid who is based in Australia to complete the administration of his late mother’s estate.

[14]I therefore order:

(a)That Graeme John Kinraid of Canberra, Australia, Forensic Scientist,   as attorney for the mentally incapable executor named in the will of Alison Elizabeth  Kinraid  and  to  whom  probate  was  granted  on  22 November 2023 be confirmed as executor and administrator of the deceased’s estate.

………………………………………

Preston J

Solicitors:

Wynn Williams, Christchurch