Estate of Milner

[2024] NZHC 1670

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-601650

[2024] NZHC 1670

IN THE MATTER OF

The estate of Iri May MILNER (aka Iri May BARBER-MILNER)

BETWEEN

ANGELA RUTH DAISY O’BRIEN, RICHARD WAYNE BARBER and SHARON ROSE BARBER

Applicants

Hearing:	On the papers
Judgment:	24 June 2024

JUDGMENT OF HARLAND J

Introduction

[1]                This application determines a joint application without notice for various orders under ss 5, 6(2) and 21 of the Administration Act 1969 (the Act) by the three surviving children of the late Iri May Milner (also known as Iri May Barber-Milner) in relation to her estate.

Background

[2]                Iri May Milner (the deceased) died on 11 December 2022. She is survived by three of her children, Angela Ruth Daisy O’Brien (Angela), Richard Wayne Barber (Richard) and Sharon Rose Barber (Sharon). The deceased’s eldest son and the applicants’ brother, David Albert Barber (David), died on 4 July 2018.

ESTATE OF MILNER [2024] NZHC 1670 [24 June 2024]

[3]                The deceased died leaving a Will dated 4 December 2021 naming Richard as executor and Josta Arlene Heyligers (Ms Heyligers) as the substitute executor of her estate.

[4]                The applicants are the only residuary beneficiaries named in the Will. Under the Will, should any of the deceased’s children pre-decease her, their child or children would take the share of their deceased parent. The deceased’s eldest son David died before the deceased but did not have any children of his own. The residuary estate is to be divided equally between the deceased’s surviving children, who are the applicants.

[5]                A dispute and animosity have arisen between Sharon and Angela on the one hand and Richard on the other hand as a result of how he allegedly acted under the enduring powers of attorney granted by the deceased and proposed to act as executor of the deceased’s estate, which Richard denies. As a result, Angela filed a caveat against the administration of the estate.

[6]                Sharon, Richard and Angela have now agreed that it would be in the best interests of the beneficiaries if the estate was to be administered by neutral and independent administrators. The proposed administrators are Rebecca Gallienne Lindo (Ms Lindo) and Deirdre Morris (Ms Morris), both of Christchurch who are company directors of Touchstone Trustees Ltd, which operates as an independent professional trustee company providing trust services to private individuals and professional trustees. Both are willing and able to be appointed as administrators of the estate.

[7]                Richard and Ms Heyligers have agreed to renounce or, if required by the Court, to be discharged from office as the executor and substitute executor named in the Will respectively.

[8]                The applicants and Ms Heyligers have consented to letters of administration with the Will annexed being granted to the proposed administrators.

Discussion

[9]The applicants seek the following orders:

(a)        that the caveat lodged against administration of the estate of the deceased by Angela be discharged with no order as to costs;

(b)       if required by the Court, Richard, be discharged from office as the executor of the estate named in deceased’s Will dated 4 December 2021;

(c)        if required by the Court, Ms Heyligers be discharged from office as the substitute executor of the estate named in the Will;

(d)       that letters of administration with the Will annexed of the estate be granted to the proposed administrators Ms Lindo and Ms Morris;

(e)        upon letters of administration being granted:

(i)Angela be reimbursed from the estate for having already personally paid the sum of $13,602.94 including GST for the deceased’s funeral (prior to other distribution of the estate); and

(ii)the estate meet the reasonable legal costs of and incidental to this proceeding incurred by Angela, Richard and Sharon and the proposed administrators, Ms Lindo and Ms Morris (prior to other distribution of the estate); and

(iii)the estate meet the professional fees and any other reasonable costs of Ms Lindo and Ms Morris arising from their nomination as proposed administrators in relation to this proceeding, and as a result of letters of administration with Will annexed of the estate being granted to them in this proceeding.

(f)         that all other costs lie where they fall.

[10]            I have reviewed the affidavits filed in support of the application. They comprise affidavits by Richard,1 Angela, Ms Lindo and Ms Morris, Richard and Ms Heyligers’ signed notices of renunciation and the consent forms which are annexed to Angela’s affidavit. I have reviewed Angela and Sharon’s signed consent forms which are also annexed to Angela’s affidavit filed in support of the proceeding.

[11]The relevant parts of s 6 of the Act provide:

6     Discretion of court as to person to whom administration is granted

(1)In granting letters of administration with or without a will annexed, or an order to administer with or without a will annexed, in respect of the estate of any deceased person or any part thereof, the court shall have regard to the rights of all persons interested in the estate of the deceased person or the proceeds of sale thereof, and, in particular, administration with a will annexed may be granted to a devisee or legatee; and any such administration may be limited in any way the court thinks fit:

provided that, subject to the provisions of subsection (2), where the deceased died wholly intestate as to his or her estate, administration shall be granted to some 1 or more persons beneficially interested in the estate of the deceased, if they make an application for the purpose.

(2)Where by reason of the insolvency of the estate or other special circumstances the court thinks it necessary or expedient to do so, it may—

(a)grant administration to such person or persons as it thinks expedient notwithstanding that some other person is appointed an executor or that, apart from this subsection, some other person would by law be entitled to a grant of administration:

(b)grant probate to 1 or more of the executors appointed by a will, notwithstanding that some other person or persons may also be appointed as an executor or executors.

(3)A grant may be made under subsection (2) notwithstanding that any person excluded from the grant would be competent to take it.

(4)Before determining to exclude from any such grant any person who, apart from this section, would by law be entitled to, or be included in, the grant, and wishes to have, or to be so included in, the grant, the court shall have regard to his or her competency and solvency, his or her ability effectively to administer the estate, the rights of all persons interested in the estate, and any changes in circumstances between the making of the will (if any) and the time when the court is asked to make the grant.

1      Two affidavits sworn on 3 April 2023 and filed earlier in this proceeding.

…

[12]The relevant parts of s 21 of the Act provide:

21   Discharge or removal of administrator

(1)   Where an administrator is absent from New Zealand for 12 months without leaving a lawful attorney, or desires to be discharged from the office of administrator, or becomes incapable of acting as administrator or unfit to so act, or where it becomes expedient to discharge or remove an administrator, the court may discharge or remove that administrator, and may if it thinks fit appoint any person to be administrator in his or her place, on such terms and conditions in all respects as the court thinks fit.

(2)   The administrator so removed or discharged shall, from the date of that order, cease to be liable for acts and things done after that date.

(3)   Upon any administrator being discharged or removed as aforesaid (whether or not any other administrator is appointed) all the estate and rights of the previous administrator or administrators which were vested in him or her or them as such shall become and be vested in the continuing administrator or administrators (including any administrator appointed under subsection (1)) who shall have the same powers, authorities, discretions, and duties, and may in all respects act, as if he or she or they had been originally appointed as the administrator or administrators.

...

[13]            I am satisfied, having read the affidavits and other documentation filed in support of the application, that it is appropriate to discharge Richard and Ms Heyligers as executor and substitute executor of the estate named in the deceased’s last Will. I am also satisfied that it is appropriate to grant letters of administration with the Will annexed of the estate to the proposed administrators Ms Lindo and Ms Morris. Having read their affidavits, I consider that, given their expertise and experience, both are suitable independent trustees.

[14]            I record that the gross value of the deceased’s estate is relatively modest, being unlikely to exceed $360,000. I also record that the applicants and Ms Heyligers have consented to the Court making all of the orders sought which, given the background to the application, is responsible and commendable.

[15]            In these circumstances, I consider that the evidence establishes that there are special circumstances that make it necessary and expedient, to make the grant of administration to Ms Lindo and Ms Morris.

[16]I grant the application and make the following orders:

(a)        the caveat lodged against administration of the estate of the deceased, Iri May Milner (also known as Iri May Barber-Milner) dated 20 February 2023, by Angela Ruth Daisy O’Brien is discharged with no order as to costs;

(b)       Richard Wayne Barber is discharged from office as the executor of the estate named in the deceased’s Will dated 4 December 2021;

(c)        Josta Arlene Heyligers is discharged from office as the substitute executor of the estate named in the deceased’s Will dated 4 December 2021;

(d)       letters of administration with the Will annexed of the estate of the deceased is granted to the proposed administrators Rebecca Gallienne Lindo and Deirdre Morris, both of Christchurch, company directors of Touchstone Trustees;

(e)        upon letters of administration being granted:

(i)prior to any other distribution of the estate, Angela Ruth Daisy O’Brien is to be reimbursed from the estate for payments personally made by her in the sum of $13,602.94 (including GST) being payments made to cover the deceased’s funeral;

(ii)the estate will pay the reasonable legal costs of, and incidental to this proceeding, incurred by Angela Ruth Daisy O’Brien, Richard Wayne Barber and Sharon Rose Barber and the proposed administrators, Ms Lindo and Ms Morris after the payment in (i) and before any other distribution of the estate; and

(iii)the estate is to meet the professional fees and any other reasonable costs incurred by Ms Lindo and Ms Morris arising from their

nomination as proposed administrators in relation to this proceeding, and as a result of letters of administration with Will annexed of the estate being granted to them in this proceeding.

(f)         All other costs are to lie where they fall.

Harland J