Gower v Glidden
[2024] NZHC 630
•22 March 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-485-613830
[2024] NZHC 630
UNDER the Administration Act 1969 IN THE MATTER
of the Estate of Mark Kevin Glidden of Auckland, Deceased
BETWEEN
JAYNE ELIZABETH GOWER
Applicant
AND
JAMES MARK GLIDDEN AND DANIEL JAMES GLIDDEN
Respondents/Caveators
Hearing: 13 September 2023
Further submissions received 13 December 2023
Appearances:
C W Gambrill and N George for Applicant
R B Hucker and M W Swan for Respondents/Caveators
Judgment:
22 March 2024
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 22 March 2024 at 4.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors: Martelli McKegg, Auckland
Molloy Hucker, Auckland
GOWER v GLIDDEN AND DANIEL JAMES GLIDDEN [2024] NZHC 630 [22 March 2024]
[1] This judgment determines two conflicting applications, both made pursuant to s 61 of the Administration Act 1969 (“Act”).
[2] On 4 July 2023, the Court made an order nisi for grant of probate of the will of Mark Glidden (“order nisi”) in favour of the applicant, Jayne Gower, alone.
[3] The respondents, Daniel and James Glidden (“the Gliddens”) seek an order rescinding or discharging the order nisi. They do not object to Ms Gower being an executor, but they do object to her being the sole executor on the grounds that Mr Glidden’s will anticipates three executors.
[4]For her part, Ms Gower seeks that the order nisi be made absolute.1
[5] For reasons given below, I propose to discharge the order nisi and dismiss Ms Gower’s application.
Background
[6] The Gliddens are the only children of Mr Glidden and his first wife. After that marriage ended, Mr Glidden commenced a relationship with Ms Gower and they married in August 2011. In or around late 2016, Mr Glidden was diagnosed with a serious illness, and he died on 31 December 2017.
Will
[7]Mr Glidden left a will dated 20 July 2016 (“will”).
[8] Clauses 3 and 4 of the will are significant in the context of what follows. By cl 3 of the will, Mr Glidden appointed three executors and trustees of his estate being Ms Gower, Mr John Stirling, and a third person to be appointed after Mr Glidden’s death by Turner Hopkins, a firm of solicitors in Auckland. Turner Hopkins drafted the will, and Mr Stirling is a partner in the firm. By cl 4, Mr Glidden made provision for
1 There are civil proceedings on foot between the parties. That litigation is quite separate to this proceeding and I am able to determine the applications before me without addressing the detail of it.
Turner Hopkins to appoint a substitute executor and/or trustee if any person they had appointed became incapacitated, unable or unwilling to act, or died.
[9]Clauses 3 and 4 provide:
3.I appoint my wife JAYNE ELIZABETH GOWER and JOHN STIRLING of Auckland, Solicitor as executors and trustees of this will to act together with the person to be appointed an executor and trustee of this will after my death by the legal firm now known as Turner Hopkins practising at Takapuna ... (“appointor”).
4.If any person so appointed (either originally or as a replacement) becomes incapacitated, unable or unwilling to act or dies:
(a)before the duties of the executors of this will are completed, then the appointer shall appoint another person to be the substitute executor and trustee of this will;
(b)before the final distribution of my estate, then the appointor shall appoint another person to be a trustee of this will.
Executors
[10]On 16 March 2018, Mr Stirling renounced his executorship.2
[11] There is no evidence before me from Turner Hopkins but it does not appear to have appointed the third executor required under the will. The Gliddens’ solicitors, Martelli McKegg, wrote to Turner Hopkins on 18 August 2023, enquiring about the latter’s failure or apparent failure to appoint the third executor. However, at least as at the date of hearing, Turner Hopkins had not replied to that letter.
Insolvency
[12] Mr Glidden was, or is believed to have been, insolvent as at the date of his death. On 28 March 2018, Turner Hopkins advised Ms Gower that the estate could be treated as an insolvent estate under s 31 of the Act and that, as a result, it was unnecessary to apply for probate. Accordingly, nothing was done to obtain probate for several years.
2 Mr Gambrill, counsel for the Gliddens, reserves their position on whether it was open to Mr Stirling to renounce. Alternatively, he submits that cl 4 of the will requires Turner Hopkins to appoint a substitute executor and trustee in place of Mr Stirling.
[13] I should add that it is not entirely clear that Mr Glidden was insolvent at the date of death. Consolidated financial statements for the Ellice Road and Classic Road trusts (both referred to below) for the year ended 31 March 2022 record advances by Mr Glidden to the Ellice Road trust totalling $389,459, vastly exceeding the shortfall in the estate.
[14] Mr Glidden purported to forgive the debts in his will but whether that would be effective in the event of what would otherwise be an insolvency does not appear to have been addressed.
Family trusts
[15] The previously harmonious relationship between the Gliddens and Ms Gower deteriorated after Mr Glidden’s death. This appears, at least in part, to have been due to concerns on the part of the Gliddens as to who would replace their father as trustee of the Ellice Road and E.M.R. trusts, of which they are beneficiaries (“ER” and “EMR” trusts respectively).
[16] The ER trust is the more important of the two for present purposes as it owns a half share in two residential properties. Ms Gower’s Classic Road trust owns the other half share. Power to appoint a new trustee of the ER trust vests in the executors and trustees of Mr Glidden’s estate, hence the Gliddens’ interest in the matter. Ms Gower and her children are also discretionary beneficiaries of the ER trust. There is less clarity regarding the appointment and removal of trustees of the EMR trust, but nothing turns on that for present purposes.
Proceedings and probate
[17] What follows is a summary of the probate documentation filed to date. As the Gliddens submit, there are deficiencies in the documentation filed by Ms Gower because there is either no reference at all to the expected Turner Hopkins appointee, or it is not addressed in sufficiently clear terms.
Caveat
[18] On 21 September 2022, and pursuant to s 60 of the Act, the Gliddens lodged a caveat in Mr Glidden’s estate (“caveat”), the effect of which was to prevent a grant of probate of the will without notice to the caveators. Any application for a grant of probate thereafter would be subject to s 61 of the Act.
Section 61 Administration Act 1969
[19]Sections 61(a)(ii) and (d)(i) are relevant for present purposes, and provide:
61 Where a caveat lodged, court may grant order nisi
In every case where a caveat has been lodged and has neither lapsed nor been withdrawn, the following provisions shall apply:
(a)the court may, upon application on behalf of the person applying for administration, supported by affidavits upon which, if there had been no caveat, administration would have been granted, may make one or other of the following orders:
(i)in any case where the court is satisfied that the caveat has been or may have been lodged vexatiously or frivolously, an order for the discharge of the caveat or for security for costs; or
(ii)in any other case, an order nisi for the grant of administration to the person applying, which order nisi shall name a time and place for showing cause against the same, and the court may enlarge any such order from time to time:
(d)... if on the day named in the order nisi, or on the day to which the order is enlarged, the caveator does not appear, the order nisi may be made absolute, upon an affidavit of service; but if the caveator appears, the hearing shall be conducted in the same manner as nearly as may be as in an ordinary action, and the court may order—
(i)that the order nisi be made absolute or discharged; or
(ii)that the application for administration be made in solemn form,—
and any order made under subparagraph (i) or subparagraph
(ii) may be with or without costs, as may be just, and, if the court so directs, those costs may be paid out of the estate:
Applications for probate
[20] Unaware that the caveat had been lodged, Ms Gower filed her (first) without notice application for grant of probate on 3 May 2023.3
[21] In the affidavit filed in support of that application, Ms Gower said that she was one of the executors of the will and that Mr Stirling “the other executor named in the will” had renounced probate. However, Ms Gower made no reference to Turner Hopkins or the executor the will intends that they will appoint.
[22] As it turns out, this application for probate was not processed until July 2023. Rather, on or about 9 June 2023, the Court informed Ms Gower that the caveat had been lodged and that it would “prevent the processing of the probate of the Will”.4
Application for order nisi
[23] Having learned of the caveat, on 27 June 2023 Ms Gower made a without notice application for an order nisi that probate of the will be granted to her alone. By this time, Ms Gower had instructed solicitors. In her application, Ms Gower said that she and Mr Stirling were named as executors under the will, that Mr Stirling had renounced, and that she was the sole remaining executor named in the will. This is repeated in the affidavit sworn in support of that application. However, again there is no reference to Turner Hopkins.
[24] As I have said, on 4 July 2023 this Court made the order nisi pursuant to s 61(a)(ii) of the Act. However, s 61(a) requires that, before making an order nisi, the Court has received an application for administration which it would grant but for the caveat. I do not consider the Court did have such an application because of the failure to “clear off” the position of the Turner Hopkins appointee.
[25] However, continuing with the narrative for the moment, in accordance with s 61(a)(ii), the Court fixed a time for the caveators to “show cause” as to why the order
3 This application, and her affidavit in support, are in fact dated 18 April 2023, even though they were not filed until 3 May 2023.
4 Affidavit of J E Gower in Support of Without Notice Application for Order Nisi for Probate where Caveat Lodge sworn 27 June 2023 at [6].
nisi should not be made absolute. That was the hearing before me on 13 September 2023.
13 July 2023
[26] On 13 July 2023, the Court wrote to Ms Gower’s solicitors, Molloy Hucker, copied to Martelli McKegg, regarding the application for probate that Ms Gower had filed on 3 May 2023.
[27] It is not clear why there was this two month delay between the filing of the application and the letter. Also, the letter makes no reference to the order nisi granted the previous week. Regardless, the Court advised in the letter of several defects in the 3 May 2023 application and affidavit. Applications for probate, whether in common or solemn form, must be made in accordance with Part 27 of the High Court Rules 2016 and the prescribed forms. As the Court’s letter made clear, the 3 May 2023 documents (which Ms Gower had lodged without legal assistance) were not compliant.
[28] Having received this advice from the Court, Ms Gower filed an amended application dated 13 July 2023 for a grant of probate, again to her alone, on the grounds that she:
(a)... is the sole remaining executrix named in the will given that the named executor John Stirling renounced his appointment as executor on 16 March 2018 and no appointment of any further executor has been made by Turner Hopkins in terms of clause 3 of the will.
[29] In her affidavit in support of that amended application of the same date, Ms Gower says:
2.I am one of the executors named in the will.
3.John Stirling, the other named executor in the will, renounced probate of the will by Renunciation of Probate dated 16 March 2018 ...
4.To my knowledge no additional executor has been appointed by Turner Hopkins under clause 3 of the will.
[30] This affidavit was closer to what was required because it did at least refer to the possibility of the third executor. However, there was no evidence confirming whether or not Turner Hopkins had made the appointment and if not, why not.
Application to rescind or discharge
[31] It is for the Gliddens to show cause why the order nisi should not be made absolute. Isac J set out the relevant principles recently in Re Antoniadis, as follows:5
(a)the onus is on the caveator to show why the order nisi should not be made absolute;
(b)to discharge the onus, the caveator has to raise sufficient grounds to establish either that the order nisi should be discharged or that a full inquiry is appropriate;
(c)the threshold for satisfying the Court that there are grounds for a full inquiry is low;
(d)the practice of the Court in a show cause hearing is not to decide the ultimate issue as to the validity of the will;
(e)the Court does not usually resolve disputed facts at a show cause hearing. Rather, if the caveator’s evidence is disputed, the Court normally orders the application for administration to proceed in solemn form; and
(f)if a caveator does not raise sufficient grounds to establish that a full inquiry should be made into the matters raised by the caveator, the order nisi will usually be made absolute.
Further submissions
[32] At my request, the parties filed submissions after the hearing on what the position might be if the condition in s 61(a) was not met at the time the order nisi was made, i.e. if I concluded the Court would not have granted probate to Ms Gower on any application filed by that time. The parties’ subsequent submissions are reflected in what follows.
Submissions
[33] The Gliddens submit that Mr Glidden appointed three executors in his will and it is clear from his will that he did not wish Ms Gower to be the sole executor of his estate. Moreover, as the Gliddens submit, Turner Hopkins drafted the will and undertook to make an appointment of a third executor. In the absence of clear evidence
5 Re Antoniadis [2023] NZHC 775 at [19].
from Turner Hopkins as to its position and why it has not made an appointment (if that is the case), the order nisi should be discharged and a full enquiry undertaken.
[34] Mr Hucker, counsel for Ms Gower, submits that I should make the order nisi absolute. He submits that there is no challenge to the validity of the will or to the insolvency of the deceased’s estate (as I have said, that latter point may be in doubt); that the estate has been administered; and that the Gliddens are not seeking orders that the will be proven in solemn form. In those circumstances, Mr Hucker submits the order nisi should be made absolute.
Discussion
[35] As Isac J said in Re Antoniadis, the threshold for satisfying the Court that there are grounds for a full enquiry is relatively low.6 That threshold is met in the present case.
[36] First, I accept Mr Gambrill’s submission that Mr Glidden did not intend that Ms Gower would be the sole administrator of his estate. He wished there to be three executors, Ms Gower included.
[37] Secondly, the forms prescribed in the rules, and the authors of Dobbie’s Probate and Administration Practice, make it clear that the absence of any executor named in the will must be explained. The relevant paragraph from Dobbie’s Probate and Administration Practice is as follows:7
27.50Clear off those who do not apply
27.50.1Court requires addresses and reasons for not applying
If more than one person is appointed executor by the will and the application for probate is made by some or just one of them, the executors or executor who apply for probate must state in the affidavit required by r 27.4(7):
(a)the then present addresses or address of the other persons or person named as executors or executor by the will; and
(b)the reason why they do not join in the application for probate.
6 At [19](c).
7 John Earles and others (eds) Dobbie’s Probate and Administration Practice (6th ed, LexisNexis, Wellington, 2014) at [27.50].
[38] The applications for probate filed to date have all been deficient in that they have not said why Turner Hopkins, who drafted the will, have not appointed the third executor, if that is the case. This omission is not a matter of form but of substance.
[39] As I have said, the omission also means that at the time it made the order nisi, the Court did not have before it an “application on behalf of the person applying for administration, supported by affidavits upon which, if there had been no caveat, administration would have been granted”. I do not need to decide whether the omission renders the order nisi a nullity, but I am satisfied it precludes making the order nisi absolute. None of the reasons Mr Hucker advanced as to why the order nisi should be made absolute allow the omission of such a significant matter to be overlooked or disregarded.
[40] For these reasons I propose to discharge the order nisi and dismiss the application that such order be made absolute.
Further application
[41] At the hearing before me, Mr Gambrill stated that the Gliddens would not oppose any further application for administration in common form provided there is agreement as to who are to be the executors of the estate. As I have said, at the time of the hearing, the Gliddens had no objection to Ms Gower per se, only to her being the sole executor.
[42] If that remains the Gliddens’ position, the parties should confer and advise the Court whether they are able to reach agreement on the terms of an application in common form. The parties should also seek to agree the matter of costs on these applications.
Result
[43] I discharge the order nisi made on 4 July 2023 and dismiss the applicant’s application that it be made absolute.
[44] Further orders as to the form of any future application for probate and as to costs may follow on receipt of the parties’ further memoranda.
Peters J
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