Estate of West

[2023] NZHC 69

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-615613

[2023] NZHC 69

UNDER	section 19 of the Administration Act 1969
IN THE ESTATE OF	Allan Jack West of Waimauku, West Auckland, Retired, Deceased

On the papers:

Counsel:

D M Kerr for Applicants

I M Vodanovich for Respondent

Judgment:

2 February 2023

JUDGMENT OF CHURCHMAN J

Background

[1]    The late Allan Jack West (the deceased) died on 19 July 2021. He had two sons, David John Cameron West (David) and Geoffrey Allan West (Geoffrey), the applicants in these proceedings. The deceased had at least one other child, a daughter, Katherine.

[2]    The deceased left a Will date 1 December 2016. That Will named three executors: Melissa Amy Gibson (Melissa), Murray Leonard Palmer (Murray) and Ivan Milan Vodanovich (Ivan) (the executors).

[3]    By a letter of 15 February 2022, the law firm acting on behalf of the executors wrote to the first named executor (Melissa, who was the deceased’s granddaughter, being his daughter Katherine’s daughter) indicating that the firm was then finalising an application for Probate and anticipated shortly being able to arrange a time for

ESTATE OF A J WEST [2023] NZHC 69 [2 February 2023]

Melissa and the other executor, Murray, to call in and sign the necessary documentation.

[4]    In his affidavit of 25 August 2022, the applicant David acknowledges having been provided with a copy of that letter by Melissa.

[5]    David wrote to the executor, Ivan, on 25 April 2022 seeking an update. Ivan replied by email dated 26 April 2022. The letter advised that the process of administration would “take as long as it takes”. It also noted that the law firm took instructions from the executors and would not be responding to further enquiries from David as that would only increase of the cost of administration.

The probate application

[6]    The application by the executors for probate did not proceed as expeditiously as had been anticipated in the letter of 15 February 2022.

[7]    The applicants, by application dated 25 August 2022 applied for an order calling upon the executors to show cause why probate should not be granted to some other person. The applicants proposed that probate be granted to themselves.

[8]    The application was made under s 19 of the Administration Act. The relevant parts of that provision provide that where an executor named in a Will neglects or refuses to prove the Will, or to renounce probate thereof, within three months from the death of the testator, the Court may, upon the application of any other executor or executors or of any person interested in the estate, grant an order nisi calling upon the executor who so neglects or refuses to show cause why probate of the Will should not be granted to that executor.

[9]    The applicants’ case is that the executors can be said to have neglected or refused to prove the Will and that the applicants are therefore entitled to make their application.

[10]   On  30  September  2022,  the   applicants   lodged   an   application   dated 27 September 2022 for grant of probate in terms of the Will.

[11]   When this matter came before the Court on 8 December 2022, Gendall J noted that the executors had in fact made an application for probate and considered that this meant the executors had clearly indicated that they were not refusing to prove the Will or renounce, albeit the application had come well over three months from the death of the testator.

[12]   Gendall J raised the question as to whether the ground in [2(9)] of the order nisi application had been made out and directed the parties to file submissions on this point, and noted that the order nisi application would then be determined on the papers.

The submissions

[13]   In submissions dated 12 December 2022, Mr Kerr, counsel for the applicants, submitted that Chisholm J in Ruocco v Wright1 had held that there were two threshold requirements for an application under s 19(1) of the Administration Act namely:

(a)the executors must have neglected or refused to prove the Will; and

(b)the neglect or refusal must have continued for three months or more from the date of the testator’s death.

[14]   Mr Kerr submitted that the application for probate after the filing of the applicants’ application for an order nisi “…does not cure their previous neglect or refusal to do so”.

[15]   In submissions dated 16 December 2022, Mr Vodanovich for the executors, explained the delay in the filing of the probate application. The causative events were said by him to be:

(i)the solicitors for the estate had difficulty finding contact details for one of the Executors, Melissa Amy Gibson (“Melissa”);

(ii)when an email address was located it proved to be an old address that was no longer used by Melissa. It took some [time] to discover this was the case;

1      Ruocco v Wright HC Christchurch CIV-2008-409-311, 16 December 2008.

(iii)when the estate’s solicitors finally obtained a correct address, the country was subject to the COVID-19 alert level restriction;

(iv)Melissa is a medical laboratory technician and her job required her to take significant precautions to avoid contracting COVID. Accordingly Melissa was particularly sensitive about having contact with third parties;

(v)the solicitors for the estate during the past 24 months were experiencing an unprecedented workload and were understaffed as a result of illness. They were simply not able to attend to files in a timely fashion.

[16]   The submissions also noted that the other executors were ready and willing to execute the probate application at an early stage and that the estate’s solicitors had made enquiries of Melissa as to whether she wanted to relinquish her executorship but Melissa declined to do so.

[17]   The submissions also note that, at the time of the filing of the application for probate, the executors were unaware that the applicants had applied, without notice, for the order nisi.

[18]   On these grounds, the executors’ solicitors submit that the executors never refused to prove the Will nor neglected to do so in terms of s 19. It is submitted that “neglect” suggests a failure to care.

[19]   The executors also rely on the decision of Chisholm J in Ruocco v Wright, in particular the passage of that decision which read:2

On a plain reading of the section, the failure of the executor named in a Will to obtain probate within three months of the death of the testator will not, of itself, be sufficient to engage s 19(1).

[20]   They also note that Chisholm J held that the wording of s 19(1) meant that the Court had a discretion whether or not to make any order under s 19(1).

Issues

[21]   The critical issue under s 19(1) is whether or not, on the facts set out above, the executors could be properly described as having neglected or refused to prove the

2 Above n 1, at [17].

Will. If that proposition is answered in the affirmative then the secondary issue is whether that neglect or refusal continued for three months or more from the date of the testator’s death.

[22]   It is also clear from the decision of Chisholm J discussed above that even if both of the criteria in s 19 are met, the Court has a discretion as to whether or not it will grant the nisi application.

[23]Chisholm J noted that:3

…the purpose of [s 19] is to enable the Court to intervene so that administration of an estate can be completed.

Analysis

[24]   There is no doubt that the executors did not prove the Will within three months from the date of death. It is also clear that there was no refusal to do so on their part. The process of completing the necessary paperwork was commenced promptly after the date of death. It is also clear that the application for probate was filed without knowledge on the part of the executors of the applicants’ without notice application for the order nisi. There is no basis for a suggestion that it was filed in response to that application.

[25]   The determinative issue is therefore whether or not the executors had neglected to prove the Will.

[26]   The history set out in the submissions of Mr Vodanovich shows that the delay between the date of death of 19 July 2021 and 15 February 2022 resulted from the fact that the executors’ solicitor was not able to email Ms Gibson. This is a plausible explanation.

[27]   As to the delay between 15 February 2022 and the application for probate on 30 September 2022, the explanations provided are also plausible.

3      At [19], italics in original.

[28]   This case is distinguishable from Ruocco v Wright in that the executors have made application for probate. The application for probate will enable the administration of the estate to be completed. The purpose of s 19 is to permit such applications where it is necessary to ensure that the administration of an estate could be completed. On the present facts, it is not necessary as the executors named in the Will have (albeit late) proceeded to administer the estate.

[29]   While the delay beyond three months from the date of death is regrettable, something more than the delay is required to found jurisdiction under s 19(1).

Conclusion

[30]   The jurisdictional requirements of s 19 are therefore not met. The nisi application is not necessary in order to ensure that the administration of the estate can be completed. It is appropriate for the administration of the estate to be undertaken by the executors named in the Will in accordance with the terms of the Will.

Outcome

[31]The applicants’ application for an order nisi is dismissed.

[32]   If costs are in issue, the executors are to file an application within 10 working days of the date of this decision with the applicants filing and serving their response within 10 days thereafter. Costs will then be dealt with on the papers.

Churchman J

Solicitors:

Gifford Devine, Hastings for Applicants

Vodanovich Law Ltd, Auckland for Respondent