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 is not one of those provided for as of right under r 19.2 of the High Court Rules 2016. The Public Trust accordingly applies under r 19.5 of the High Court Rules, which provides:

19.5 Court may permit proceeding to be commenced by originating application

(1)The court may, in the interests of justice, permit any proceeding not mentioned in rules 19.2 to 19.4 to be commenced by originating application.

(2)The court’s permission may be sought without notice.

(3)The proposed originating application must be filed with an application for permission under this rule.

[11]   I accept that it is in the interests of justice for the proceeding to be commenced by way of originating application. The interests of justice mean that the Court must secure the just, speedy, and inexpensive determination of the proceeding.1 I accept it is not necessary in the interests of justice for there to be the usual particularised

1      Solar Bright Ltd v Martin [2019] NZHC 300 at [18] and [26].

pleadings, or interlocutory steps such as discovery for the proper determination of the issues. The affidavit evidence indicates that the factual issues will not be wide- ranging.

[12]   Additionally, there is the fact that the Public Trust is named as executor in both the 2001 and 2011 wills. Proceeding by way of ordinary proceedings would involve the Public Trust potentially proceeding as both plaintiff and defendant in any solemn probate application. Although the Public Trust could do so under s 120 of the Public Trust Act 2001 I accept that this is not the most practical or appropriate pathway to progress these particular proceedings.

[13]   Further, given the size of the estate, a proceeding by way of originating application would be the most cost-effective form in which to bring the application and it avoids the greater expense of a statement of claim, statement of defence, discovery, case management and a trial.

Directions as to service

[14]   The 2011 will provides for Mr Sole’s estate to be divided equally per capita amongst his brothers and sisters living at his death. Mr Sole had five brothers and one sister. Two of Mr Sole’s siblings, Ivan Maxwell Sole and Wayne Malcolm Sole, pre- deceased Mr Sole.

[15]   In the event that a grant of solemn probate is made in respect of the 2011 will, the estate of Mr Sole would be divided amongst the four siblings living at the time of his death:

(a)Neville Keith Sole;

(b)Murray Nolan Sole;

(c)Stephen John Sole;

(d)Ngaire Marlene Claridge.

[16]   In the event that a grant of probate is made in respect of the 2001 will then the estate of Mr Sole would pass in its entirety to the sole beneficiary, Ngaire Marlene Claridge.

[17]   In the event that there is a capacity issue in relation to both wills and that no grant of solemn probate is made in respect of either will by the Court then it appears that an application for Letters of Administration would be necessary. Mr Sole had no spouse or partner, no children and no surviving parents and accordingly those with a primary interest under intestacy would be the four siblings referred to in [15] above.

Application for leave to proceed on a without notice basis

[18]   Taking into account all the circumstances referred to above, I consider that it is in the interests of justice for leave to be granted to the Public Trust to bring its application without notice for an order permitting the proceedings to be commenced by way of originating application.

Orders

[19]   Leave is granted to the Public Trust on a without notice basis to proceed by way of originating application under Part 19 of the High Court Rules 2016 on the basis of the proposed originating application referred to in [2](b) above.

[20]   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:

(a)Neville Keith Sole;

(b)Murray Nolan Sole;

(c)Stephen John Sole; and

(d)Ngaire Marlene Claridge.

[21]   Leave is granted 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.

Gordon J