Estate of Rhodes

[2015] NZHC 1275

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-604936 [2015] NZHC 1275

IN THE ESTATE OF GEORGE WILBUR RHODES (DECEASED)

Hearing:

(At Auckland)

On the papers

Counsel:

J Kilpatrick

Judgment:

9 June 2015

JUDGMENT OF FAIRE J

This judgment was delivered by me on 9 June 2015 at 10 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: WRMK Lawyers, Whangarei

re the Estate of GW Rhodes [2015] NZHC 1275 [9 June 2015]

[1]      Application for the grant of probate in common form has been made in respect of the estate of George Wilbur Rhodes, deceased.

[2]      The deceased died on 6 April 2015.   He left a will dated 18 January 2012, which appointed executors and trustees as follows:

I  appoint  my  daughter  Rachel Ann  Strange,  my  son  Malcolm  James Robert Rhodes and a partner in the law firm Urlich McNab Kilpatrick, or its successor law firm, nominated at my death by the partners in the law firm Urlich McNab Kilpatrick, or its successor law firm (“my trustees”) the executors and the trustees of this will.

[3]      When the will was made there was a law firm Urlich McNab Kilpatrick. That firm ceased to exist on 30 September 2012.  Webb Ross McNab Kilpatrick Ltd was incorporated on 28 June 2012.   That took over the practice of Urlich McNab Kilpatrick from 1 October 2012.

[4]      Webb Ross McNab Kilpatrick Ltd directors have nominated James Kilpatrick as the partner of the firm to be the executor and trustee, along with the other two executors and trustees named in the will.

[5]      The file was referred to me to consider whether, in the circumstances, the grant of probate in common form was appropriate.

[6]      A similar situation was dealt with by MacKenzie J in the estate of Kenneth Valdemar   Cornelius   (deceased).1      His   Honour   there   held   that   a   company incorporated after the making of the will fell within the appointment clause which provided “its successor law firm”.   For the reasons expressed by MacKenzie J I conclude that Webb Ross McNab Kilpatrick Ltd comes within the description of “its

successor law firm” as defined in the will.

1      In  the  estate  of  Kenneth  Valdemar  Cornelius  (deceased)  (HC  Timaru,  CIV-2011-476-542,

20 December 2011).

[7]      Similarly, as did MacKenzie J, it is necessary to consider who are partners in the incorporated law firm.   I agree with his Honour’s conclusion that all qualified directors will be eligible.

[8]      The next, and difficult, question is whether the appointment is precluded by s 63 of the Administration Act 1969.  Once again, I agree with MacKenzie J that, in this case, s 63(1) and the first limb of s 63(2) do not apply. The will does not appoint a company as an executor.  It appoints an individual.  That person is selected because he is a member of the law firm.  The appointment is not one of the law firm.  The incorporation does  not  alter the basic nature of the appointment, which is of a member of the law firm.

[9]      On that basis, I am satisfied that s 63 of the Administration Act 1969 is not engaged in this case and that this case is an appropriate one for probate now to be

considered by the Registrar, having regard to the terms of this judgment.

JA Faire J