Hall (dec'd) HC Dunedin CIV 2005-412-879

[2007] NZHC 1722

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2005-412-879

IN THE MATTER OF     Thomas Cameron Hall of Dunedin, Farmer, Deceased

Hearing:         23 April 2007

Judgment:      23 April 2007

JUDGMENT OF MILLER J

[1]      This is an application for an order recalling probate and for grant of letters of administration.  It raises the question whether such applications may be made in the one application or must be brought sequentially.

[2]      The deceased left a will dated 26 January 1998.   That will was revoked by operation of law on his marriage to Pamela Mason on 24 June 2005, several months before his death.  He and Ms Mason had lived together for a period of approximately

24 years.   The executors of the will moved for probate unaware that it had been revoked by operation of law.  They now move for recall of the grant of probate and the grant of letters of administration to Mark Thomas Hall, a son of the deceased and one of the executors of the will of 26 January 1998.

[3]      The application has been brought under Rule 650 of the High Court Rules, which provides:

(1)      Where a grant of administration has been made in common form, an order  for  the  recall  of  the  grant  may  be  made  upon  an  interlocutory application if—

(a)    That application is uncontested; and

(b)    One of the following circumstances applies—

HALL HC DUN CIV 2005-412-879  23 April 2007

(i)     The grant was made upon the footing that the deceased died intestate and a will has been discovered; or

(ii)       A will later in date to that of which probate was granted has been discovered; or

(iii)     The person to whom the grant was made applies for or consents to the recall.

(2)     In all other cases application to recall a grant of administration shall be made in a proceeding brought for the purpose.

[4]      Nothing in the Rule prohibits the practice of combining an application for recall with an application for grant of probate of another will or letters of administration.  However, the authorities tend to suggest that sequential applications ought to be made.  In re Muir [1991] NZLR 632, Chapman J was concerned with a soldier’s will which had been discovered after his executrix received a grant of probate of an earlier will. The two wills were in identical terms. Under the Code of Civil Procedure which was then in force, proceedings to recall a grant of probate were to be made by originating summons. Chapman J held:

The proper course, therefore, in such a case as this is to file an application to revoke the probate, and at the same time or afterwards to file an application for probate in the ordinary way under 518.  I see no objection to these being included in one motion.  The regular course is to follow the English practice which lays down that “the executor or administrator is to take the new grant following upon the revocation cannot be sworn to his papers leading to the grant until after the revocation of the former grant has been made:   Coote and Tristram on Probate 15th  ed 243.   This practice has not been exactly followed in this case, but I do not think the rule strictly applies here, because this is not necessarily merely an application to recall probate and make a regrant, but an application on which it may prove necessary to take some other course ….

[5]      However, in Re Leech (Deceased) (1914) 17 GLR 128, in which a former will was partly superseded by a later one and probate was granted on the later will before the existence of the former will was discovered, Edwards J stated that there cannot be two co-existing general grants of administration of the estate and effects of the same person; the two instruments together constituted the will and the grant of administration must be of both papers to the executors named in the later instrument. He held that the proper procedure was to move by consent to revoke the probate granted of the later instrument and move subsequently for grant of probate to both executors.

[6]      In both cases, reference was made to Tristram and Coote’s Probate Practice, in the 30th edition of which (published in 2006) it is said that the executor who is to take the new grant cannot swear the papers to lead to the grant until after the former grant has been revoked:   Tristram and Coote’s Probate Practice (30ed 2006) at

17.57.

[7]      However, the applications for recall and further grant remain sequential even if they are brought in the one application.  There is thus no necessary inconsistency between the two applications; the application for letters of administration or a new grant of probate will not succeed unless the application for recall is first granted. Nor is it incompatible with the duties of the executor under the will to first move for revocation of probate, an error having been discovered, and simultaneously apply for a further grant, swearing an affidavit to administer the estate according to the terms of the grant.   Re Leech is distinguishable, because in that case both wills were effective in part and so had to be administered together. I am concerned with a will that has been revoked. Like Chapman J, I see no objection to the two applications being made in the one motion. There is also some saving in cost for the estate in that case, and R 4 requires that the Rules be so construed as to secure the just, speedy and inexpensive determination of any proceeding.

[8]      The  applications  for  recall  of  probate  and  letters  of  administration  are granted.

F Miller J