Frew

[2012] NZHC 488

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2011-470-1106 [2012] NZHC488

UNDER  the Administration Act 1969

IN THE MATTER OF     the estate of HELEN PHILLIPA FREW AND

IN THE MATTER OF applications by DAVID CHARLES FREW

Hearing:         21 March 2012

Counsel:         M P Ward-Johnson for the Applicant

Judgment:      21 March 2012

ORAL JUDGMENT OF WYLIE J

Solicitors:      Till & Clarke, PO Box 3, Cambridge 3450

Counsel:       M P Ward-Johnson, PO Box 13561, Tauranga

ESTATE OF FREW HC TAU CIV-2011-470-1106 [21 March 2012]

[1]      The applicant, Mr David Frew, has filed two applications with the Court.

[2]      The first application seeks an order that the last testamentary disposition of his mother, the late Helen Phillippa Frew, be produced.  In the event, that document is now before the Court.   An affidavit has been sworn by a Mr Casey who is a solicitor practising in Tauranga.   Mr Casey was appointed to act for the deceased under the Protection of Property and Personal Rights Act 1988.  In that capacity he held the deceased’s last will and testament dated 22 February 2000.  He has made the original available to the Court.

[3]      The second  application  sought  an  order nisi  calling upon  the applicant’s father, Mr Regi Frew, who is named as the sole executor in the deceased’s will, to show cause why probate of the deceased estate should not be granted to Mr Regi Frew, or administration with will annexed to Mr David Frew.  That application has been made under s 19(1) of the Administration Act 1969.

[4]      The deceased in her will bequeathed the whole of her estate to her husband, Regi Frew, and appointed him as sole executor of her will.  There are also provisions providing for the distribution of the estate in the event that Mr Regi Frew fails to survive the deceased.  Those provisions have no application because Mr Regi Frew has survived his wife.

[5]      The deceased died at Athenree on or about 1 December 2010.  No application has been made by Regi Frew for probate of the deceased’s will.  Nor has Mr Regi Frew renounced probate of the will.

[6]      Section 19(1) of the Administration Act Provides:

19       Proceedings where executor neglects to prove will

(1)      In  any case where  any executor  named  in a will  neglects or refuses to prove the will, or to renounce probate thereof, within

3 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 or of Public Trust or of the Maori Trustee or of any creditor of the testator, 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 alone, or with any other   executor   or   executors   or,   in   the   alternative,   why

administration should not be granted to the applicant or some other person.

(emphasis added)

[7]      Here, the applicant Mr David Frew is not named in the will of the deceased. As noted Regi Frew is the primary beneficiary.  David Frew was not named as one of  the  contingent  beneficiaries  in  the  event  that  his  father  had  predeceased  his mother.   However, Mr David Frew does claim to have an interest in the estate pursuant to the Family Proceedings Act 1955.  I am advised by Mr Ward-Johnson (who has appeared on Mr David Frew’s behalf this morning) that proceedings either have been, or shortly will be, filed under that legislation.

[8]      I am satisfied that Mr David Frew is a “person interested” in the estate adopting a purposive approach to the meaning of those words contained in s 19(1).

[9]      Accordingly I grant an order nisi calling upon Mr Regi Frew to show cause why probate of the will should not be granted to him or, in the alternative, why letters of administration with the will annexed should not be granted to Mr David Frew or some other person.

[10]     The order nisi is to be served upon Mr Regi Frew.  Upon proof of service (or upon the Court dispensing with service of the order if there are any difficulties in that regard) and if Mr Regi Frew does not appear or show cause, the Court will be entitled to make such orders for the administration of the estate, and as to costs, as appear to it to be just.

[11]     The costs of this morning’s application are reserved.

Wylie J