Estate of Meyer
[2021] NZHC 138
•11 February 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-605
[2021] NZHC 138
UNDER s 9B of the Administration Act 1969 IN THE MATTER
the estate of GRAEME GEOFFREY MEYER (Deceased)
BETWEEN
of an application by ELAINE MARGARET BLACK of Christchurch, Machinist, and JANET RAELENE TEMPLETON of
Lawrence, Farmer for orders directing them to continue to act as administrators
Plaintiff
Hearing: 11 February 2021 Appearances:
B R D Burke for applicants
Judgment:
11 February 2021
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 11 February 2021 at 2.35 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Introduction
[1] Janet Templeton and Elaine Black, the applicants, were granted probate as the administrators of the estate of their brother, Graeme Geoffrey Meyer (“Graeme”). They apply for orders permitting an application to be brought by way of originating
Re Meyer [2021] NZHC 138 [11 February 2021]
application, dispensing with service and directing that they continue to act as the administrators of Graeme’s estate.
Background
[2] Graeme died in March, leaving a will dated 16 June 1977. Under his will Graeme appointed his father, Neil Meyer (“Neil”), and his mother, Edna Meyer (“Edna”), to be the executors and trustees of his estate. He left the whole of his estate to Neil and Edna.
[3]Graeme did not have any children of his own.
[4] Neil died on 10 October 2011. Upon Graeme’s death in 2019, Edna was the remaining person named as the sole executor, trustee and beneficiary of Graeme’s will.
[5] The applicants, being the other two children of Neil and Edna, hold an enduring power of attorney for property for Edna dated 15 May 2013. On 24 June 2019, Edna’s doctor found that she was no longer competent to manage her affairs. Accordingly, the applicants applied for probate of Graeme’s will. They were granted probate by the High Court on 26 July 2019. The grant appointed the applicants as the administrators of Graeme’s will until Edna was able to obtain a grant of administration to herself, or until three months from the date of Edna’s death. It further limited the grant to the time that:
(a)the applicants were discharged or removed under s 21 of the Administration Act 1969 (the Act); or
(b)the power of attorney ceased to have effect in accordance with s 106 Protection of Personal and Property Rights Act 1988; or
(c)the applicants were removed as administrators under s 9B(3)(b) or s 9B(4) of the Act.
[6] Edna died on 2 March 2020. Probate of her will was granted to the applicants on 6 August 2020. The applicants were appointed as the surviving executors named in Edna’s will.
[7] Due to the COVID-19 lockdown, the applicants did not get in contact with their solicitors to discuss Graeme’s and Edna’s estates until July 2020. The present application was filed on 3 December 2020.
Application
[8] The applicants have not yet completed the administration of Graeme’s estate. They therefore apply for an order directing that they continue to act as the administrators of Graeme’s estate under s 9B(3) of the Act until the winding up of his estate is complete.
[9] The applicants also apply for orders permitting the application to be made as an originating application pursuant to pt 19 High Court Rules 2016, and dispensing with service of the application and affidavits. Their grounds are that no other persons are affected by the application, that it relates to a routine matter and that the interests of justice require the application to be determined without serving notice.
Discussion
[10] It is clear that the orders sought are in the interests of justice. The applicants’ continuing their role as administrators would be the most expedient and effective way of ensuring the ongoing and proper administration of Graeme’s estate. Through Edna’s will, the applicants are now, in practical terms, the sole beneficiaries of Graeme’s estate.
[11] The Court’s jurisdiction to order that the applicants’ administration continue is less straightforward. The applicants obtained a grant of administration under s 9A(2) of the Act, which provides for a grant to the holder of an enduring power of attorney in circumstances where the donor (in this case Edna) has become mentally incapable. Section 9B then provides:
9BFurther 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.
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.
(4)If—
(a)the donor dies; and
(b)the attorney fails to make an application under subsection (2) within 3 months after the date of death of the donor; and
(c)any person interested in the estate in respect of which the attorney is acting as administrator, or Public Trust, or the Māori Trustee, or any creditor of the testator or intestate, applies to the court under section 21 to have the attorney removed as administrator,—
the court must remove that attorney as administrator under section 21.
[12] In this case the applicants did not make an application under s 9B(2) of the Act within the prescribed three months. For the applicants, Mr Burke submits the Court should nevertheless direct that they continue to act as administrators under s 9B(3)(a). He submits that s 9B(3)(a) does not stipulate that an application under s 9B(2) must be made within three months for the Court to direct the attorney to continue to act as administrator. He further submits that the fact that the applicants have applied under s 9B(2) for directions is sufficient to engage s 9B(3)(a).
[13] The case law and commentary on s 9B(2)–(3) of the Act is sparse. The only cases I have been able to locate are a series of (three) decisions in Re Estate of Nurmela, which involved straightforward and timely applications under s 9B(2) and resulting directions under s 9B(3).1
1 Re Estate of Nurmela [2016] NZHC 1800; Re Nurmela [2017] NZHC 1795; and Re Estate of Nurmela [2018] NZHC 212.
[14] The only express provision regarding an administrator who does not apply within the three-month period is s 9B(4). That subsection provides that the Court must remove an attorney as administrator where the donor dies, the attorney fails to apply under subs (2) within three months of their death, and a specified person applies to the Court under s 21 of the Act to have the attorney removed as administrator. The applicants satisfy the first two of those requirements, but not the third.
[15] There is no statutory provision that expressly states what should happen where an administrator does not apply for a continuance of their position within three months of the donor’s death and where no application has been made for their removal. The existence of that third requirement under subs (4) suggests that failing to apply within three months is not an automatic bar to the administrators continuing in their position.
[16] I conclude that failure to apply within the three-month period does not prevent the Court from making an order under s 9B(3). Parliament must have intended this to be a possibility given the inclusion of the third requirement under subs (4), which prescribes mandatory removal only where there has also been an application for removal under s 21. In line with this approach, the three-month period specified in subs (2) may be interpreted as declaring that the attorney’s grant of administration will expire three months after the death of the donor, unless and until the attorney is granted an extension under s 9B(3)(a).
[17] Had this not been my conclusion, I would nonetheless have found there to be jurisdiction to grant the requested order under the Court’s inherent jurisdiction. In Re Jones (deceased), Quilliam J exercised inherent jurisdiction to grant letters of administration in circumstances where s 6 of the Act did not apply.2 His Honour said:3
It is [in the inherent jurisdiction of the Court] that the power of the Court to make a grant of administration in the present case is to be found. The Court is to have power to do whatever may be necessary to administer the laws of New Zealand. It is apparent that the power to make a decision upon an application such as the present one is to be regarded as a necessary judicial function. The estate of the deceased must be administered. … Plainly the Court must be prepared to consider the grant to an applicant where the justice of the case demands it.
2 Re Jones (deceased) [1973] 2 NZLR 402 (HC).
3 At 405.
[18] Whether it is by way of s 9B(3)(a) of the Act or the inherent jurisdiction of the Court, I find that the justice of this case lies in favour of the making of an order continuing the grant of administration to the applicants.
[19] I am also satisfied that it is appropriate and in the interests of justice to allow the proceedings to be commenced by way of originating application and to dispense with service, for the reasons put forward by the applicants.
Order
[20]I order:
(a)The substantive application is to be dealt with as an originating application;
(b)Service of the application is dispensed with;
(c)The applicants are to continue to act as administrators upon the letters of administration of the estate of the deceased, Graeme Geoffrey Meyer, dated 26 July 2019, for a further period of six months from today’s date; and
(d)Leave is further reserved to the applicants to apply to extend further the period of their administration if circumstances so require.
Osborne J
Solicitors:
Harmans Lawyers, Christchurch
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