Fagan v Malcolm

[2015] NZHC 2733

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2015-419-134 [2015] NZHC 2733

IN THE MATTER

of the Estate of KENNETH PETRIE

MALCOLM

AND

IN THE MATTER

of an application for Letters of
Administration with Will annexed

BETWEEN

STEPHEN REX FAGAN Plaintiff

AND

SYLVIA JANE MALCOLM Defendant

Hearing:	5 November 2015
Appearances:	EJ Hudson for Plaintiff AH Waalkens QC for Parties directed to be served E Dawe for other Parties directed to be served
Judgment:	5 November 2015

ORAL JUDGMENT OF TOOGOOD J

FAGAN v MALCOLM [2015] NZHC 2733 [5 November 2015]

[1]      Kenneth  Petrie  Malcolm  died  on  7 April  2013  leaving  a  last  will  dated

18 March 2010.    The  late  Mr  Malcolm  was  survived  by  his  wife,  Sylvia  Jane

Malcolm, and five children.

[2]      Mrs Malcolm, and the plaintiff, Mr Fagan, were appointed under the will as executors and trustees of the estate.  The will makes a bequest of a modest cash sum and chattels to Mrs Malcolm and the residue is left to the KP & SJ Malcolm Family Trust, which had been created by a deed dated 16 April 2003.

[3]      It is not disputed that Mrs Malcolm is now suffering from dementia and that she is not competent to make decisions concerning her care, accommodation or finances.  A property manager has been appointed under the Protection of Personal and Property Rights Act 1988, to attend to Mrs Malcolm’s needs.

[4]      This proceeding is an application by Mr Fagan for a grant of probate of the will to the exclusion of Mrs Malcolm.1

[5]      Mrs Malcolm’s property manager and the children have been served with copies of the proceeding.   The property manager and three of the children have commenced proceedings against the estate seeking various remedies relating to the will provisions and have given notice of their intention to bring proceedings under the Family Protection Act 1955.

[6]      Section 6 of the Administration Act 1969 gives the Court a discretion to grant administration or probate to one or more of the executors appointed by a will by reason of there being special circumstances making it necessary or expedient to do so.  I am satisfied on the evidence that it is appropriate to exclude Mrs Malcolm from the grant of probate because she is not competent to discharge the responsibilities of an executor and trustee.

[7]      Accordingly, I make the following orders:

1      Administration Act 1969, s 6(2)(a).

(a)      Pursuant to s 6(2)(a) of the Administration Act 1969, Stephen Rex Fagan of Otorohanga, Company Director, shall be granted probate in solemn form of the estate of the late Kenneth Petrie Malcolm to the exclusion of the defendant, Sylvia Jane Malcolm.

(b)The reasonable costs of the claim shall be paid out of the estate of the late Kenneth Petrie Malcolm.

……………………………

Toogood J