Estate of Sole - [2023] NZHC 1417

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2023-404-000783

[2023] NZHC 1417

IN THE MATTER

AND
of the Administration Act 1969

IN THE MATTER

of an originating application by PUBLIC TRUST as the executor of the estate of HENRY MELVYN SOLE for an order for the grant of probate in solemn form

Hearing: On the papers

Counsel:

A Finnie for the Public Trust

Judgment:

8 June 2023

JUDGMENT OF GORDON J

This judgment was delivered by me on 8 June 2023 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:
A Finnie, Barrister, Auckland Public Trust, Wellington

RE ESTATE OF HENRY SOLE [2023] NZHC 1417 [8 June 2023]

[1] The Public Trustee as the executor of the estate of Henry Melvyn Sole seeks leave on a without notice basis to commence a proceeding by way of originating application.

[2]The following documents have been filed:

(a)Without notice application for an order permitting proceedings to be commenced by way of originating application;

(b)Originating application for an order for the grant of probate in solemn form for two of Mr Sole’s wills in the alternative;

(c)Without notice application for directions as to service;

(d)Affidavit in support of without notice application for directions as to service;

(e)Affidavit in support of originating application; and

(f)Memorandum of Mr Finnie, counsel for the Public Trust.

[3]The documents have been referred to me in my capacity as Duty Judge.

Background

[4] Mr Sole died on 15 August 2022. He was not in a relationship at the time of his death and his death certificate notes that he was never in a legal relationship. Both Mr Sole’s parents pre-deceased him.

[5] The Public Trust is named as executor of two wills made by Mr Sole dated: 27 January 2011 (the 2011 will) and 18 May 2001 (the 2001 will). There are no known earlier or subsequent wills.

[6] The affidavit evidence is to the effect that, following commencement of initial estate administration responsibilities the Public Trust has become aware of

information which it believes may be relevant to the issue of testamentary capacity in respect of both the 2011 will and the 2001 will. The Public Trust is continuing to make further enquiries and is seeking an affidavit from a chartered accountant who witnessed both wills.

[7] In circumstances where the Public Trust is uncertain as to which (if either) of the two wills is the last valid will of Mr Sole, the Public Trust seeks to propound the 2011 will and the 2001 will in the alternative.

[8]The estate is limited in nature. It is estimated to be between $320,000 and

$400,000 and is simply Mr Sole’s former family home.

[9] With two siblings having predeceased Mr Sole, the 2011 will provides for the division of the estate between four siblings. The 2001 will provides for the whole estate to pass to one sibling.

Discussion – procedure

[10] The proposed originating application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 1417
Decision Date: 8 June 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the Public Trust, acting as executor of the estate of Henry Melvyn Sole, has applied for leave to commence proceedings by way of originating application, seeking an order for the grant of probate in solemn form for two wills made by Mr. Sole. The 2011 will and the 2001 will are in contention, with the Public Trust uncertain as to which, if either, is the last valid will of Mr. Sole. The court must determine whether the proceeding should be allowed to commence by way of an originating application and if leave should be granted for the application to proceed without notice.

The court needed to decide if it was in the interests of justice to allow the proceeding to commence by way of an originating application, as opposed to the usual ordinary proceedings, and if leave should be granted to proceed without notice. The Public Trust argued that proceeding by way of an originating application was the most practical, cost-effective, and expeditious way to resolve the matter, given the limited nature of the estate and the need to avoid potential conflicts of interest. The court had to consider the specific circumstances of the case, including the limited estate, the uncertainty regarding the validity of the wills, and the potential conflicts of interest if the Public Trust were to proceed as both plaintiff and defendant in ordinary proceedings.

The court granted leave to the Public Trust to proceed by way of originating application. It found that it was in the interests of justice to allow the proceeding to commence by way of an originating application, as it would secure the just, speedy, and inexpensive determination of the proceeding. The court considered that the affidavit evidence indicated that the factual issues would not be wide-ranging, and that proceeding by way of an originating application would be the most practical and cost-effective form in which to bring the application. The court also found that it was appropriate to grant leave for the application to proceed without notice, given the limited nature of the estate and the absence of any significant prejudice to any interested parties.

The court granted leave to the Public Trust to apply for any further directions as to service in the event that any person directed to be served is unable to be served or any other direction to progress the proceedings. The court ordered that service of the proceedings is to be effected by way of a copy of all the documents filed in the proceedings together with a copy of this judgment on the four living siblings of Mr. Sole.

Orders