Estate of Magee (deceased)

[2015] NZHC 1048

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-485-010966 [2015] NZHC 1048

IN THE MATTER OF       the estate of Patrick Magee, Deceased

Hearing:	18 May 2015
Appearances:	B Pamatatau for Applicant T Bowler for Respondent
Judgment:	19 May 2015

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 19 May 2015 at 11.00am

pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Date……………………

Solicitors:      Gibson Sheat, Wellington

Kevin McDonald & Associates, Auckland

Estate of P MAGEE Deceased [2015] NZHC 1048 [18 May 2015]

[1]      The late Mr Patrick Magee died on 5 February 2013.  He left a will dated 13

October 1998.  In his will he appointed his sons Peter Magee, Patrick Magee Jnr and

Darren Magee as the executors and trustees of his will.

[2]      Bupa  Care  Services  NZ  Limited  (“Bupa”)  operates  a  rest  home.    The deceased was a resident in that home for some time.   There were substantial fees outstanding and owing to Bupa as at the date of his death.

[3]      Mr Magee’s sons did not apply for probate of his will.  Bupa’s endeavours to obtain payment of the monies owing to it were frustrated because they had no-one to deal with.

[4]      On 21 August 2014 Bupa filed an originating application seeking an order nisi, calling on Peter Magee and Patrick Magee Jnr to show cause why probate should not be granted to the Public Trust.  Bupa did not at that stage appreciate that Darren Magee was also a named executor.

[5]      An order nisi was made by Williams J on 22 August 2014.  He also ordered the deceased’s solicitor to produce the will to the Registrar.  When that occurred, it transpired that there was the additional executor – Darren Magee.

[6]      Attempts were made by Bupa to serve Darren Magee.  Those attempts were unsuccessful, and on 11 May 2015 Faire J made an order dispensing with service on him.

[7]      Peter Magee is represented before me today in Court.  There is an affidavit of service confirming that Patrick Magee Jnr has been served.

[8]      None  of  the  named  executors  has  filed  a  notice  of  opposition  to  the application.

[9]      Faire J did foreshadow the possibility that were payment to be made to Bupa, the  matter  could  be  resolved.    However  Mr  Pamatatau  confirmed  that  no  such

payment has been made.  Mr Bowler advised me that this is because, at this stage, Mr Peter Magee is not prepared to pay the costs sought by Bupa.

[10]     This matter has to be advanced.  I can see no reason why probate should not be granted to the Public Trust, pursuant to s 19 of the Administration Act 1969.  The Public Trustee has filed a consent agreeing to the appointment.

[11]     Accordingly, I make an order granting probate of the will of the late Patrick

Magee to the Public Trust.

[12]     Both parties sought that costs should be reserved for a period of two months, to give them an opportunity to resolve this issue.  Accordingly I direct that, if costs have not been agreed on or before 5 pm on Friday 17 July 2015, Bupa, on or before

24 July 2015, is to file a memorandum seeking costs.  Any memorandum in response is to be filed on or before 31 July 2015.  The memoranda are to be placed before the duty judge sitting at that time.  The Court will then deal with the issue of costs on the

papers, unless it requires the assistance of counsel.

Wylie J