Estate of Sweetman

[2016] NZHC 1654

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-613470 [2016] NZHC 1654

IN THE ESTATE OF PM SWEETMAN

Hearing:

(At Auckland)

19 July 2016

Counsel:

JP Schlooz for applicant
No appearance by GM Sweetman

Judgment:

20 July 2016

JUDGMENT OF FAIRE J

This judgment was delivered by me on 20 July 2016 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Paddy Orr & Co, Auckland

re The Estate of PM Sweetman  [2016] NZHC 1654 [20 July 2016]

[1]      The deceased,  Patricia  Mavis  Sweetman,  died  in Auckland, her place  of residence, on or about 30 December 2014.

[2]      The deceased executed a document believed to be her last Will on 23 March

2011.  The original of that document is not currently available for reasons which will be shortly explained.  A photocopy of the deceased’s Will has been produced.  That document discloses that the deceased appointed her son, Mark Sheridan Sweetman, and her daughter, Glenys Mary Sweetman, to be executors and trustees of her Will.

[3]      Mr RJ Burton, of Auckland, barrister and solicitor, received instructions to complete  the  administration  of  the  deceased’s  estate.    On  3 February  2015,  he prepared an application for a grant of probate, and an affidavit to lead grant of probate.  He forwarded those documents, together with the original of the Will of the deceased and his covering letter, to Glenys Mary Sweetman.   His letter gave instructions concerning the execution of the documents.  It sought the return of the documents in an addressed envelope, which was also enclosed.

[4]      Mr Burton sent a number of follow-up emails to Ms GM Sweetman seeking the return of the documents.   None of those emails were responded to.   He also attempted to make contract by telephone with Ms Sweetman, without success.

[5]      Mr Burton advises that, in the meantime, a property owned by the deceased at Botany was desired to be sold, but that process is delayed by virtue of a grant of probate not having yet been made.

[6]      Mr Mark  Sheridan  Sweetman  filed  a  without  notice  application  seeking orders for the production of the deceased’s Will and seeking an order nisi calling upon Glenys Mary Sweetman to show cause why probate of the Will of Patricia Mavis Sweetman not be granted to Mark Sheridan Sweetman alone.

[7]      I gave directions on 20 May 2016 concerning that application.  I noted that the application was made in reliance on ss 5, 19 and 54 of the Administration Act

1969.   I directed that the application be on notice and that it be served on Glenys

Mary Sweetman and that the application have as its hearing date 9 am on 21 June

2016.

[8]      The documents were duly served on Glenys Mary Sweetman on 8 June 2016. [9]      On 21 June 2016, the matter was again called before me.  Counsel appeared

for  the  applicant,  Mr Mark  Sheridan  Sweetman.    No  appearance  was  made  by

Ms GM Sweetman.  I ordered that:

Glenys Mary Sweetman produce to the Registrar of this Court the original of the Will of the deceased, Patricia Mavis Sweetman, within 10 working days of service of a sealed copy of this order on her.

[10]     In addition, I made an order nisi that:

unless Glenys Mary Sweetman shows cause, at a sitting of this court to be held at 9 am on 19 July 2016 why this order should not be made absolute, probate of the will of the deceased will be granted to the applicant.

That order was duly sealed.

[11]     The sealed order which I made on 21 June 2016 was served on Glenys Mary

Sweetman on 30 June 2016.

[12]     The  matter  was  again  called  before  me  on  19 July  2016.    Counsel  for Mr Mark Sheridan Sweetman appeared.   No appearance was entered by Ms GM Sweetman.

[13]     The Court file reveals that the Registrar of the High Court at Auckland has not received from Glenys Mary Sweetman the original Will of the deceased.

[14]     The Will of the deceased has been traced to Glenys Mary Sweetman.  She has been ordered to produce it but has failed to do so.  I am satisfied that no further steps could reasonably be taken to obtain the original Will at this time.   Fortunately, a photocopy of the executed Will has been produced.

[15]     I am also satisfied that Glenys Mary Sweetman has, in terms of s 19 of the

Administration Act, either neglected or refused to prove the Will of the deceased and

that a period in excess of three months from the date of death of the testatrix has now passed.  I made an order nisi on 21 June 2016.  I am now satisfied that there is no reason why an order absolute should not be made.

[16]     Accordingly, I order that probate of the copy will attached to the affidavit of

RJ Burton be granted to Mark Sheridan Sweetman alone.  This grant is conditional on the original Will being brought into Court if found.

JA Faire J