Estate of McIntosh

[2023] NZHC 725

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2023-470-28

[2023] NZHC 725

UNDER

s 21 of the Administration Act 1969

IN THE MATTER

of the Estate of Vicky Frances McIntosh

AND

DENNY KINGSLEY MCINTOSH

Applicant

Judgment:

(On the papers)

4 April 2023

JUDGMENT OF BREWER J

This judgment was delivered by me on 4 April 2023 at 1 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Holland Beckett Law (Tauranga) for Applicant

THE ESTATE OF VICKY FRANCES MCINTOSH v DENNY KINGSLEY MCINTOSH [2023] NZHC 725 [4

April 2023]

[1]                 The applicant has filed an originating application for removal of his brother, Jayden Kingsley McIntosh (the executor), as the sole executor of the estate of their mother, the late Vicky Frances McIntosh. Ms McIntosh died on 28 October 2020 and the executor died on 7 February 2023 without leaving a Will.

[2]                 Leave is required to bring the proceeding by way of originating application, and I grant leave.

[3]                 The only other beneficiary of Ms McIntosh’s estate is the father of the executor and the applicant, who has consented to the application.

[4]                 Counsel for the applicant, in his memorandum, points out that in the usual course of things the administrator who will be appointed for the executor’s estate would also administer Ms McIntosh’s estate. However, no administrator has been appointed and the process will take some time. In the meantime, the remaining asset of Ms McIntosh’s estate, a house in Perth, is currently on the market. There needs to be a person who can legally bind Ms McIntosh’s estate to the sale of the property.

[5]                 I have read the affidavit of the applicant dated 22 March 2023. It was affirmed at Perth in Australia on 22 March 2023 before a Justice of the Peace. Mr Conder points out that this is irregular.

[6]                 I have a broad discretion under both the Administration Act 1969 and the common law to grant the application if I think it is in the interests of justice to do so. I will rely on the affidavit.

[7]                 Under the circumstances of urgency and consent of the only other interested party, I grant the application.

[8]                 I remove Jayden Kingsley McIntosh as executor of the estate of Vicky Frances McIntosh and I appoint Denny Kingsley McIntosh as executor in his place.

[9]                 The actual and reasonable costs of this application may be paid from the assets of the estate.

Brewer J