Henshaw v Henshaw

[2022] NZHC 2920

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2021-463-94

[2022] NZHC 2920

UNDER

the Administration Act 1961 and the Courts equitable jurisdiction

IN THE MATTER

of the Estate of Ernest David Henshaw

BETWEEN

DENNIS CHARLES HENSHAW

Plaintiff

AND

WAYNE GARRY HENSHAW

Defendant

Hearing:

8 November 2022

Appearances:

AAM Kershaw for Plaintiff

No appearance by or on behalf of Defendant

Judgment:

8 November 2022

JUDGMENT OF WOOLFORD J

[Letters of administration with will annexed]

Solicitors:           Hamertons Lawyers Ltd (A Kershaw), Whakatane

HENSHAW v HENSHAW [2022] NZHC 2920 [8 November 2022]

[1]    This is an application for letters of administration with will annexed. The plaintiff, Dennis Charles Henshaw, is one of  three  children  of  the  deceased,  Ernest David Henshaw, who died at Kawerau on 10 September 2011. The deceased left a will dated 15 July 2011 in which he bequeathed his estate to his three children equally.

[2]    The deceased appointed one of his children, Wayne Garry Henshaw, as executor of his will. He is named as the defendant in this proceeding. The defendant has confirmed that he holds the original of the will, but he has taken no steps to apply for probate or otherwise administer the estate.

[3]    At the time of his death, the deceased owned a property at 109 River Road, Kawerau. The defendant has resided in the property since the deceased’s death. He has paid no rent.

[4]    The plaintiff’s lawyer has sent a letter to the defendant proposing that he renounce his executorship, but the defendant has not responded.

[5]    This proceeding was filed in the High Court at Rotorua on 29 November 2021. The defendant was served with the proceeding on 22 December 2021 but has taken no steps. The plaintiff subsequently applied to this Court for an order for production of the will. The Court granted the order on 8 February 2022. The order was served on the defendant on 18 February 2022. He has not complied with the order. I am satisfied that no further steps could reasonably be taken to obtain the original will at this time. Fortunately, a photocopy of the executed will has been produced.

[6]    As to the law, s 5 of the Administration Act 1969 provides jurisdiction and authority for the Court to grant and revoke probate of wills and letters of administration with or without a will annexed of the estate of deceased persons. Section 6 gives the Court a discretion as to the person to whom the administration is granted.

[7]    Rule 27.25 of the High Court Rules provides for the grant of letters of administration with will annexed to the person entitled to them according to the

priority in r 27.26 in cases where an executor  neglects  to  prove  a  will  within three months from a testator’s death. Applying r 27.26, the three children have priority to apply equally.

[8]    The defendant as executor has neglected to apply for probate for 11 years and the deceased’s third child, Vikki Anne Bates, supports the application made by her brother, the plaintiff.

[9]    Accordingly, I make an order that the plaintiff is granted letters of administration with will annexed, conditional on the original will being brought into Court if found.

[10]Costs on a 2B basis are to be deducted from the defendant’s share of the estate.

Woolford J