Estate of Sowry

[2021] NZHC 3355

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-617985

[2021] NZHC 3355

UNDER

sections 9B and 13 of the Administration Act 1969

IN THE ESTATE OF

BRIAN SOWRY

Deceased

On the Papers
Counsel:	G B Presland for the Applicant
Judgment:	8 December 2021

JUDGMENT OF GWYN J

(Confirming applicant as executor and administrator of deceased’s estate)

[1]                 This is an application without notice for confirmation of Executor of Probate to Attorney of Executor Mentally Incapable.

Background

[2]                 On 6 December 2019 the  last  Will  of  the  deceased,  Brian  Sowry,  dated 14 November 1996, was proved by this Court and the applicant was appointed as administrator of the deceased’s estate on the  basis  that  the  deceased’s  wife,  Jillian Carol Sowry, the sole named executor, was mentally incapable.

[3]                 Jillian Sowry died at Auckland on or about 7 September 2021. Probate  of  Ms Sowry’s Will has been granted under CIV-2021-485-616334 and the applicant has been appointed as administrator of her estate.

RE THE ESTATE OF SOWRY [2021] NZHC 3355 [8 December 2021]

[4]                 The execution of the deceased’s Will and administration of his estate is not completed.

Administration Act 1969

[5]                 The application is made pursuant to ss 9B and 13 of the Administration Act 1969. Section 9B relevantly provides as follows:

9B       Further provisions relating to grant of administration to holder of enduring power of attorney

…

(2)If the donor dies while the attorney is acting as administrator, the attorney must, within 3 months after the date of death of the donor, apply to the court for directions relating to whether the attorney may continue to act as administrator.

1. If an application is made under subsection (2), the court may—

(a)direct the attorney to continue to act as administrator; or

(b)remove that attorney as administrator under section 21.

(4)If—

(a)the donor dies; and

(b)the attorney fails to make an application under subsection (2) within 3 months after the date of death of the donor; and

(c)any person interested in the estate in respect of which the attorney is acting as administrator, or Public Trust, or the Māori Trustee, or any creditor of the testator or intestate, applies to the court under section 21 to have the attorney removed as administrator,—

the court must remove that attorney as administrator under section 21.

[6]Section 13 of the Administration Act provides:

13       Executor of executor represents original testator

(1)An executor of a sole or last surviving executor of a testator shall be the executor of that testator:

provided that for the purposes of the foregoing provisions of this subsection a person who does not prove the will of his or her testator shall be deemed not to be an executor notwithstanding his or her appointment as such by the will, and in the case of an executor who on his or her death leaves surviving him or her some other executor of

his or her testator who at the time of the testator’s death has not proved but who afterwards proves the will of that testator, it shall cease to apply when probate to the surviving executor is granted.

(2)So long as the chain of representation is unbroken, the last executor in the chain is the executor of every preceding testator.

(3)The chain of representation is broken by—

(a)the failure to leave a will; or

(b)the failure of a testator to appoint an executor; or

(c)the failure to obtain probate of a will,—

but is not broken by a temporary grant of administration if probate is subsequently granted.

(4)Every person in the chain of representation to a testator—

(a)has the same rights in respect of the estate of that testator as the original executor would have had if living; and

(b)is, to the extent to which the estate of that testator has come to his or her hands, answerable as if he or she were an original executor.

Application

[7]                 This application was originally made on 15 November 2021 and therefore within the requisite three months after the date of death of the donor.

[8]                 The applicant has filed an affidavit in support of the application in which she confirms that she is willing to continue to continue to act as administrator of the deceased’s Will and that she will faithfully execute the Will and administer the estate remaining unadministered of which probate is granted in accordance with the law.

[9]                 The application is made without notice to any other party, pursuant to r 27.4 of the High Court Rules 2016, on the alternative grounds that requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant, the application affects only the applicant and the application relates to a routine matter.

Outcome

[10]             I am satisfied that it is appropriate to make the order sought on a without notice basis.

[11]Accordingly, I make the following order:

That Leigh Carol Lawrence of Auckland, Legal Executive, as attorney for the mentally incapable executor named in the Will of the deceased and to whom probate was granted on 6 December 2019 be confirmed as the executor and administrator of the deceased’s estate.

Gwyn J

Solicitors:

Presland & Co Limited, Waitakere