ex parte

[2020] NZHC 2656

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-88

[2020] NZHC 2656

IN THE MATTER

of the Wills Act 2007

BETWEEN

IVAN JOHN COCKROFT

Applicant

EX PARTE

MARGARET PATRICIA BRUSS

(Deceased)

Hearing:	(Determined on the papers)
Counsel:	M J Foley for Applicant
Judgment:	9 October 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 9 October 2020 at 12.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 9 October 2020

COCKROFT v EX PARTE MARGARET BRUSS [2020] NZHC 2656 [9 October 2020]

[1]                 This proceeding concerns an application to validate a document (the Proposed Will) as the last Will of Margaret Patricia Bruss, who is deceased.

[2]                 The applicant, Mr Cockroft, who will be the executor and trustee if the Proposed Will is validated as a Will, has sought directions as to service and his counsel has filed a comprehensive memorandum in support of that application.

[3]                 Counsel notes the deceased left a valid Will made in 2001 (the 2001 Will). Apparently there are a significant number of legatees under that Will and under the Proposed Will. Counsel correctly identifies those legatees are entitled to be served and counsel has already carried out considerable work in seeking agreement from the parties to be served that they accept service by email. Directions are sought in that regard.

[4]                 I initially thought the issue of service by email of those directed to be served was covered by r 6.7 of the High Court Rules 2016 under the heading “Service under agreement”. The rule provides service by a method agreed to in writing by a party,  is sufficient service on that party. However, “party” is defined as “any person who is a plaintiff or a defendant or a person added to a proceeding”.1 The parties directed to be served, while they have an interest in the proceedings, do not become defendants.

[5]                 Accordingly, I am satisfied it is appropriate the parties identified in the memorandum of counsel dated 29 September 2020 are served with the proceedings, save for one person, Sally Manning, and I will refer to her situation below.

[6]                 I direct those parties who have agreed to accept service by email, that is the people  in  organisations  identified  at  para  5  of  counsel’s  memorandum  dated  29 September 2020, are to be served by way of email.

1      High Court Rules 2016, r 1.3(1) definition of “party”.

[7]                 Counsel records that in respect of the individuals referred to in the memorandum, counsel has adopted the spelling for those individuals as they appear in the 2001 Will. Some individuals have married and changed surnames. Some names are spelt incorrectly, so for consistency, counsel has adopted the names from the 2001 Will. I agree, for present purposes, that is appropriate for consistency. However, if any of those parties who receive the court documents wish to take steps then they may, in filing any documents, adopt their current/correct name and explain how the difference arises.

[8]                 As to the organisations listed in the Proposed Will, counsel has sought from the bodies concerned, details of the correct entity to be served. In particular, there are sub-organisations of St Johns named. I confirm the correct organisation to serve is “St Johns South Island Region”. No doubt St Johns South Island Region will advise if it is not the correct body to represent St Johns Ambulance Association Alexandra (Vincent), St Johns Ambulance Association (Dunedin) or St Johns South Island.

[9]                 The New Zealand Foundation for the Blind is now called  “Blind  Low  Vision NZ”.

[10]              Counsel record that under the Proposed Will, there will be a partial intestacy as to the residue.

[11]              Counsel have identified that under the Administration Act 1969, the deceased’s nephews and nieces receive the residuary estate if the Proposed Will is validated. Several of those nieces and nephews are already named in the 2001 Will, however, two are not; they are Simon Hikaka and Sally Hikaka. They too, have agreed to accept service by email. There is a direction accordingly.

[12]              Counsel identifies that in the Proposed Will, the deceased provided for gifts to her great-nephews and great-nieces, but they are not named personally. They are identified in counsel’s memorandum dated 29 September 2020. In respect  of Kathryn Aramoana Manning, she is an adult and has agreed to accept service by email and there is a direction accordingly.

[13]              Thomas Preddy and Michael Preddy are adults. The applicant does not have current email addresses for them. Their mother, Elizabeth Preddy, is a beneficiary under the 2001 Will and also under the Proposed Will. She has advised the applicant that her two sons do not have updated email addresses, but says she can accept service on their behalf. In effect, the applicant is seeking an order for substituted service in respect of Thomas Preddy and Michael Preddy.

[14]              Had Elizabeth Preddy confirmed that she was in contact with her sons and would notify them of the proceeding, I would have been comfortable to make such an order. I defer making a direction in respect of Thomas Preddy and Michael Preddy until counsel can file a memorandum advising whether they have been located and whether Elizabeth Preddy has confirmed that she is in contact with them and will bring the papers to their attention.

[15]              Two further great-nieces are Emma Thompson and Sophie Thompson. They are minors.  Their father, Simon Thompson, is already amongst those to be served.   I direct Simon Thompson is to represent the interests of Emma Thompson and Sophie Thompson and he may be served on their behalf.

[16]              A similar state of affairs exists in relation to Paul Thompson’s two children; Ruben Thompson and Anya Thompson, who are minors. Paul Thompson is amongst those to be served. I direct  Paul  Thompson  is  to  represent  the  interests  of  Ruben Thompson and Anya Thompson and he may be served on their behalf.

[17]              Similarly, Xavier Hikaka and Harper Hikaka, who are the children of Simon Hikaka, are minors. Simon Hikaka is being served on the basis that he will receive under a partial intestacy if the Proposed Will is validated. I direct Simon Hikaka is to represent the interests of Xavier Hikaka and Harper Hikaka and he may be served on their behalf.

[18]              Counsel confirm Mr Cockroft will  personally  serve  Margaret  Leckie,  Anne Thompson and the Friends of Dunstan Hospital. I accept such will be good service, and so I direct.

[19]              That leaves a Mr John Herron who receives property under the 2001 Will. While Mr Herron has been in touch by telephone with Mr Cockroft and provided him with an email address, he has not responded to a request that he agrees to be formally served by email. Counsel submit, given he made contact by email and asked to receive copies of the 2001 Will and the Proposed Will by email, that it is appropriate he be served by email as well. Counsel note it was Mr John Herron who provided the email addresses of all his children.

[20]              I direct Mr John Herron may be served by email, but that service will be complete upon Mr John Herron confirming receipt of the email. If Mr Herron does not confirm receipt of the email, counsel are to refer the matter back to me by memorandum.

[21]              That leaves Sally Manning, who I mentioned at the outset of this judgment. Counsel have been unable to locate her. I am told that enquiries have drawn a blank. Ms Manning does not receive anything under the Proposed Will. Under the 2001 Will she receives some jewellery. Counsel have not been able to determine who she is or where she lives.

[22]              Counsel suggest that service be dispensed with. I am not prepared to do that in the absence of a full account of the steps taken to trace Ms Manning. I appreciate counsel wish to avoid further delay.

[23]              In respect of Ms Manning, I make an order for substituted service that counsel are to place an advertisement in the public notices section of the Otago Daily Times, in a Saturday edition, to the effect that Ms Sally Manning is a beneficiary under the Will of the late Margaret Patricia Bruss and requesting her to make contact with applicant’s counsel and requesting that anyone knowing of her whereabouts, bring the notice to  her  attention.  Counsel  are  to  tender  the  proposed  advertisement  in  the memorandum I have already referred to. I have in mind that upon the advertisement being placed in a Saturday edition of the Otago Daily Times, that such will be good service.

[24]              I, again, thank counsel for the detailed and helpful memorandum and expect to be able to finalise the further directions in short order upon the further memorandum referred to above being filed.

Associate Judge Lester

Solicitors:

Scholefield Law, Invercargill