Heppelthwaite v Heppelthwaite

[2021] NZHC 1152

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-595

[2021] NZHC 1152

UNDER

s 19 Administration Act 1969

IN THE MATTER

of the will of Janet Heppelthwaite late of Christchurch

BETWEEN

STEPHEN HEPPELTHWAITE and ANDREW MILES HEPPELTHWAITE

Plaintiffs

AND

SIMON GRANT HEPPELTHWAITE

Defendant

Appearances:	G M Brodie for Plaintiffs K W Clay for Defendant
Judgment:	21 May 2021
(Determined on the papers)

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 21 May 2021 at 3.15 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

HEPPELTHWAITE v HEPPELTHWAITE [2021] NZHC 1152 [21 May 2021]

[1]        Janet Heppelthwaite died at Christchurch on 27 May 2019. By her will dated 19 December 2013 she left her modest estate equally to her three children (the two plaintiffs and the defendant).

[2]        The administration of the estate has proceeded but issues arose in relation to applying for probate.

This application

[3]By this application the plaintiffs applied for orders:

(a)granting them leave to bring this application as an originating application under Pt 19, High Court Rules;

(b)calling upon the defendant to show cause why probate of Mrs Heppelthwaite’s will dated 19 December 2013 should not be granted to them; and

(c)an order granting to them probate of the will.

[4]        The defendant filed a notice of opposition in which he indicated that the main issue in dispute between the parties was as to the law firm which should act for the estate in seeking probate and administration.

Resolution

[5]        Happily, the parties through counsel have now resolved their differences, agreeing that all three parties should be appointed as the executors and trustees of Mrs Heppelthwaite’s estate and that an independent law firm, Cameron & Co, should be appointed as the estate solicitors.

[6]        Consent orders are sought. Given the resolution reached between the parties and the fact that they are the sole beneficiaries under Mrs Heppelthwaite’s will, I am satisfied that the orders I make are appropriate. The parties sought an order as to their appointment as executors and trustees — the order I make will be one confirming their

appointment (as under cl 2 of the deceased’s will the three siblings had already been so appointed).

[7]        The orders sought by the parties do not include anything in relation to probate and I accordingly leave it to the parties to apply for probate in the usual way.

Order

[8]By consent I order:

(a)the plaintiffs have leave to bring this application as an originating application under pt 19 High Court Rules;

(b)Stephen Heppelthwaite, Andrew Miles Heppelthwaite and Simon Grant Heppelthwaite are confirmed as the executors and trustees of the will (and estate) of the late Janet Heppelthwaite;

(c)the law firm of Cameron & Co is appointed to act as solicitors for the said estate, reserving leave to that firm to apply for further directions in the event that is necessary; and

(d)the costs of the proceeding are reserved.

Case management

[9]        I accordingly vacate the hearing scheduled for 9 June 2021. If matters of costs are not resolved between the parties, they will be determined on the papers, with the plaintiffs to file their memorandum first and the defendant to file his memorandum within five working days thereafter (four page limit in each case).

Osborne J

Solicitors:

Kannangara Thomson,  Christchurch Counsel: G M Brodie, Barrister, Christchurch Purnell Creighton, Christchurch

Counsel: K W Clay, Barrister, Christchurch