Estate of Whitley

[2016] NZHC 1230

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-603845 [2016] NZHC 1230

UNDER	the Wills Act 2007
IN THE ESTATE OF KENNETH JAMES WHITLEY
PERPETUAL TRUST LIMITED Applicant

Hearing:

At Auckland

On the papers

Counsel:

CJ Kelly for applicant

Judgment:

9 June 2016

JUDGMENT OF FAIRE J

This judgment was delivered by me on 9 June 2016 at 9:30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Greg Kelly Law Ltd, Wellington

Estate of KJ Whitley [2016] NZHC 1230 [9 June 2016]

[1]      On 30 March 2016, the applicant made application for probate of a will dated

24 May 2011 and made by the late Kenneth James Whitley.   Mr Whitley died on

24 September 2015. The application was made on a without notice basis.

[2]      On 9 May 2016, a caveat was filed on behalf of Carol Ileen Lloyd of Christchurch, Team Leader, requiring that nothing be done in respect of the will of Kenneth James Whitley without notice to Martin Maurice Bell, solicitor for Carol Ileen Lloyd.

[3]      On 10 May 2016, a Senior Deputy Registrar issued the following minute:

1.The  probate  documents  are  in  order  and  would  be  capable  of receiving a grant.  Please note however that a caveat was lodged on

2 May 2016 by Martin Bell of Corcoran French, solicitors for the caveator, Carol Ileen Lloyd.  A copy of the caveat is enclosed for

your information.  If you wish to apply for an order nisi you should file  a  memorandum  requesting  such  an  order  be  made  on  the

application for obtaining grant of probate, together with orders for sealing.  Please see section 61 of the Administration Act 1969 and the decision of Justice Heath in re Cherry (Dec'd) 2003.

[4]      Rather than proceeding as advised in the Senior Deputy Registrar’s minute,

the applicant now applies on a without notice basis for orders:

(a)       Appointing that company temporary administrator of the estate of

Kenneth James Whitley; and

(b)Giving directions to that company to give notice of the caveat, filed on behalf of Carol Ileen Lloyd, to Gregory Whitley, Grant Whitley, John Whitley, Christine Myers, Jennifer Whitley, Linda Whitley, Dianne Gilbert, Howard McGeachie and Kenneth McGeachie the residuary beneficiaries named in clause 5.2 of the deceased’s will dated 24 May 2011.

[5]      The caveator’s solicitor advises that the caveator has no objection to the

applicant making an application for appointment as interim administrator.

7        Administration pending legal proceedings

(1)       Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant of administration, are pending, the Court may grant administration of the estate of the deceased to a temporary administrator, who shall, until he is discharged or removed under section 21 of this Act, have all the rights and powers of a general administrator, other than the right  of  distributing  the  balance  of  the  estate  remaining  after payment of debts, funeral and testamentary expenses, duties, and fees, and every such temporary administrator shall be subject to the immediate control of the Court and act under its direction.

(2)       The  Court  may,  out  of  the  estate  of  the  deceased,  grant  to  a temporary   administrator   appointed   under   this   section   such reasonable remuneration as the Court thinks fit.

[7]      The jurisdictional requirement for the making of an order under s 7, namely that there is a legal proceeding for obtaining a grant of administration is met.

[8]      Accordingly,  I am satisfied that an order should be made appointing the applicant a temporary administrator of the estate of the late Kenneth James Whitley. I order accordingly.   I reserve leave to the applicant to apply for further orders pursuant to s 7, if required.

[9]      The applicant gives reasons why directions concerning the existence of the caveat to the beneficiaries names in the will of the deceased, dated 24 May 2011. The applicant considers that any dispute as to which of former wills of the deceased is the last valid will of the deceased, is a matter for the beneficiaries named in respect of wills, rather than for the executor to pursue.  Accordingly, if they have notice of the position, they can elect what action they desire to take.

[10]     I accept therefore that it is appropriate that I direct that the applicant give notice of the existence of the caveat having been lodged in the application for probate to Gregory Whitley, Grant Whitley, John Whitley, Christine Myers, Jennifer Whitley, Linda Whitley, Dianne Gilbert, Howard McGeachie and Kenneth McGeachie, the residuary beneficiaries named in cl 5.2 of the deceased’s will, dated

24 May 2011.

JA Faire J