Estate of Ngan
[2024] NZHC 2067
•26 July 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-607514
[2024] NZHC 2067
IN THE MATTER OF the Estate of Sue Fong Ngan of Wellington Deceased AND
an application by Jeanne Lowe
On the Papers Counsel:
A J Steele for the Applicant
Judgment:
26 July 2024
JUDGMENT OF GWYN J
(Grant of administration to temporary administrator; order nisi to put issues before the Court)
Background
[1] By interlocutory application without notice dated 13 May 2024 the applicant sought an order for probate of the Will of the deceased, Sue Fong Ngan.
[2]The applicant is the sister of the deceased and the executor named in the Will.
[3] On 13 May 2024 a caveat against the application for probate was lodged in the Court by Peter Ngan and Rose Ngan, preventing administration of the deceased’s Estate (caveat).
[4] The applicant then applied, on 26 June 2024, for an order pursuant to s 7(1) of the Administration Act 1969 that the applicant be appointed temporary administrator of the Estate of Sue Fong Ngan (application).
RE THE ESTATE OF NGAN [2024] NZHC 2067 [26 July 2024]
[5] On 1 July 2024 Grau J directed service of the application on all of the named beneficiaries in Mr Ngan’s will.
[6] In her affidavit in support of the originating application for an order of appointment as temporary administrator (dated 26 June 2024), the applicant notes that, at the time of his death, Mr Ngan owned properties at seven locations in Wellington (properties). By reason of the caveat the applicant was not able to administer the Estate in any way so could not pay any of the Estate’s expenses, including rates and insurance for the properties.
[7] The applicant notes that the properties are subject to specific legacies in Mr Ngan’s will (including one to the applicant). For that reason the expenses associated with the properties need to be paid. The applicant notes she would not otherwise deal with – including sell – or encumber the properties without seeking on notice directions from the High Court.
[8] The application states that the orders sought are necessary to preserve and manage the assets of the Estate.
[9] By affidavit of 22 July 2024, Andrew James Steele, counsel for the applicant, records that in compliance with Grau J’s direction he sent the following documents to each and every beneficiary of the Will and to the caveators:
(a)the applicant’s notice of originating application for an order for appointment of a temporary administrator dated 26 June 2024;
(b)the applicant’s affidavit affirmed on 26 June 2024 in support of her originating application for an order for appointment of a temporary administrator; and
(c)counsel’s memorandum dated 26 June 2024 in support of the originating application for an order of an appointment of a temporary administrator.
[10] Mr Steele has attached to his affidavit the responses received from each of the individuals to whom the documents were provided. All of those individuals support the applicant’s appointment as temporary administrator. The caveators consent to the appointment provided the properties at 6 and 8 Angus Avenue, Brooklyn are not sold.
[11] I note that cl 6 of the deceased’s will states his wish that none of the properties referred to at cls 2 to 5 are sold before the sixth anniversary of his death. The flats at 6 and 8 Angus Avenue are included in cl 5. The sixth anniversary of his death not having passed, there is no real concern that they are likely to be sold if Ms Lowe is appointed as temporary administrator. Also, as noted above, the applicant has deposed in her affidavit of 26 June 2024 that she would not sell any of the properties without first seeking on notice directions from the High Court.
Section 7(1) Administration Act
Section 7(1) of the Administration Act provides:
Administration pending legal proceedings
(1) Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant of administration, are pending, the court may grant administration of the estate of the deceased to a temporary administrator, who shall, until he or she is discharged or removed under section 21, have all the rights and powers of a general administrator, other than the right of distributing the balance of the estate remaining after payment of debts, funeral and testamentary expenses, duties, and fees, and every such temporary administrator shall be subject to the immediate control of the court and act under its direction.
[13]In the Estate of McHugh, Whata J proceeded on the basis that:1
(a)there must be a legal proceeding touching the validity of the will of a deceased person of a grant of administration;
(b)it must be necessary to grant an order for interim administration in order to preserve and to manage the assets of the estate pending the resolution of the proceedings; and
1 Re Estate of McHugh [2015] NZHC 1271, cited in De Greogorio v Surridge [2017] NZHC 2061, at [4]
(c)the proposed appointee must be suitably qualified to perform the tasks of the administrator and must have sworn to faithfully administer the estate.
[14] I am satisfied that the factors at (a) and (b) above are satisfied: there is a legal proceeding touching the validity of the will and it is clear on the material before the Court that it is necessary to appoint an interim administrator to preserve and manage the assets pending resolution of the proceedings.
[15] As to (c) – the suitability of the proposed appointee – in previous case law under s 7 where a temporary administrator is appointed, the executor(s) of the will has applied for the order, usually to appoint a temporary administrator who is not the executor.2 Appointment of independent professionals such as accountants or the Public Trust are not uncommon. In De Gregorio v Surridge, the High Court declined an application by the executor of the will who was a family member of the deceased to be appointed as temporary administrator, instead appointing a person independent of the family.3
[16] Here, Ms Lowe is the sister of the deceased and both a beneficiary of the estate and the executor of the estate. However, unlike the De Gregorio case, there is no evidence of “gross hostility” between the beneficiaries4 and, as recorded above, the beneficiaries of the Estate have indicated their consent to Ms Lowe’s appointment. Having regard to that factor and the terms of Ms Lowe’s affidavit, I am satisfied that she is a suitable person to be appointed as temporary administrator.
Orders
[17] Accordingly, I make orders in the terms sought in the notice of originating application dated 26 June 2024, namely:
(a)Leave to commence this proceeding by originating application.
2 See for example Bartlett v Gillespie [2023] NZHC 42; Norager v Norager [2023] NZHC 699; Re McCormick [2022] NZHX 2140; and Laery v Grout [2014] NZHC 1881.
3 De Gregorio v Surridge [2017] NZHC 2061.
4 De Gregorio at [20].
(b)An order pursuant to s 7(1) of the Administration Act 1969 that the applicant be appointed temporary administrator of the Estate of the late Sue Fong Ngan (also known as Mick Ngan) of Wellington, who died at Wellington, New Zealand on or about 2 May 2024, until discharged or removed as such under s 21 of the Act, on the condition that the applicant have all the rights and powers of a general administrator other than the right to distribute the balance of the Estate, and that the applicant be subject to the immediate control of the High Court and to act under its direction.
Section 61 Administration Act
[18] Simultaneously with the application for appointment as temporary administrator, Ms Lowe filed an order nisi application to cause the caveators, Peter Ngan and Rose Ngan, to put their issues before the Court.
[19] The relevant statutory provision is s 61 of the Administration Act. Section 61 relevantly provides:
61 Where a caveat lodged, court may grant order nisi
In every case where a caveat has been lodged and has neither lapsed nor been withdrawn, the following provisions shall apply:
(a) the court may, upon application on behalf of the person applying for administration, supported by affidavits upon which, if there had been no caveat, administration would have been granted, may make one or other of the following orders:
…
(ii)in any other case, an order nisi for the grant of administration to the person applying, which order nisi shall name a time and place for showing cause against the same, and the court may enlarge any such order from time to time:
…
[20] In Van der Kaap v Wilson the Court of Appeal outlined the usual approach to hearings under s 61 to show cause:5
5 Van der Kaap v Wilson CA97/04, 14 June 2005 at [34].
… the conventional course is for the caveator to provide such evidence as is readily available to support the caveat and for those propounding the will either to submit to a requirement to proceed in solemn form or alternatively to deny that the caveator has raised enough to prevent the order nisi being made absolute. The High Court does not usually resolve genuinely disputed issues of fact under s 61.
[21] An order nisi will be granted. That should proceed to a hearing as soon as possible. I direct that it be set down for a half day hearing. A timetable will then be set in place for the filing of affidavits and submissions.
Gwyn J
Solicitors:
Courtney & Co, Auckland Kember Law, Wellington
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