In the Matter of the Estate of Monica Mary Hunt By Peter Gerard Fromont and Luke Norman Crawford Applicants

[2024] NZHC 3143

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2592 [2024] NZHC 3143

IN THE MATTER OF

the Estate of MONICA MARY HUNT

BY

PETER GERARD FROMONT and LUKE NORMAN CRAWFORD

Applicants

Hearing:	On the papers
Counsel:	J W H Little for Applicants
Judgment:	29 October 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 29 October 2024 at 2 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:

Sellar Bone & Partners, Auckland James Little, Auckland

Re ESTATE OF MONICA MARY HUNT [2024] NZHC 3143 (29 October 2024)

[1]    The applicants, Mr Fromont and Mr Crawford, have made a without notice application seeking:

(a)directions as to service;

(b)leave to commence the application for probate in solemn form by originating application;

(c)their appointment as temporary administrators under s 7(1) of the Administration Act 1969; and

(d)prospective cost orders, directing that the applicants are entitled to have the costs associated with the proceeding paid out of the estate and will not, personally and independently of the estate, be liable to pay the costs of any other party.

[2]    The applicants are the executors and trustees named in the last will  of Monica Mary Hunt. Ms Hunt died on 16 May 2024 aged 88. Her last will was executed on 9 May 2023 and is said to comply with the formal requirements in s 11 of the Wills Act 2007.

[3]    Ms Hunt named 23 beneficiaries in her will. There are three issues with the will:

(a)There is a drafting error misidentifying the bank that held a term deposit referred to in a specific bequest. The application seeks correction of that error under s 31 of the Wills Act.

(b)In the month or so prior to her death, Ms Hunt signed several codicils to her will, under which she identified chattels and indicated the person or family to whom she wished to gift them. These documents are not valid wills in terms of s 11 of the Wills Act, so an application is made under ss 14 and 15(d) of the Wills Act to validate those changes.

(c)On 10 May 2024, six days prior to her death, Ms Hunt signed a document to the effect that her late nephew, Paul Fromont, or his successors should be reinstated in her will at the same level as his siblings. An application is therefore made under the same provisions to address whether that change should be validated.

[4]    As the above orders would change the effect of the will dated 9 May 2023, rather than seek probate in common form in the usual way, the applicants propose that probate in solemn form be determined at the same time as the other applications. Rule 27.6(3) of the High Court Rules 2016 provides that pt 5 applies to an application in solemn form. Accordingly, leave is necessary under r 19.5 to make that application by way of originating application. There is not expected to be any controversy regarding the grant of probate for the 9 May 2023 will, because it was validly executed in terms of s 11 of the Wills Act.

[5]    In terms of service, the 23 existing beneficiaries, plus the person who would benefit from the third change, live in New Zealand, Australia, the United Kingdom and the United States. The applicants have email addresses for them and all have confirmed their agreement to accept service of the proceedings by email. It is not considered necessary to require service on individuals who would benefit from validation of the chattel codicils. Counsel for the applicants notes that the overriding concern should be to ensure that persons potentially affected (adversely) are given proper notice of the proceeding and an opportunity to be heard.1 The proposed directions as to service achieve this.

[6]    It is not yet known whether there will be a delay in determining the issues outlined above, as this depends on the views of the parties proposed to be served and the position they take as to whether they oppose the orders and seek to be heard in opposition. In the circumstances, the applicants seek orders appointing them joint temporary administrators under s 7 of the Administration Act.

1      Re Zhu HC New Plymouth CIV-2010-443-21, 17 May 2010 at [3].

[7]    The Court in Re Amundson said there was sparse authority on s 7, and so proceeded on the basis that a grant of temporary administration required the following:2

(a)there must be a legal proceeding touching the validity of the will of a deceased person or the grant of administration;

(b)it must be necessary to grant an order for interim administration in order to preserve and manage the assets of the estate pending the resolution of the proceedings; and

(c)the proposed appointee must be suitably qualified to perform the tasks of the administrator and must have sworn to faithfully administer the estate.

[8]    Here, there is a pending application for probate and it is necessary to grant an order for interim administration to enable the applicants:

(a)to pay estate expenses, including legal fees and disbursements (such as filing fees) in connection with this proceeding from the estate, and storage costs for the chattels; and

(b)to deal authoritatively with third parties on behalf of the estate.

[9]    I accept that there needs to be an appropriate person with legal responsibility to preserve the assets of the estate, to obtain relevant information, and to take appropriate steps for progressing the proceeding.3

2      Re Amundson [2015] NZHC 1271 at [12].

3      Re Parker [2022] NZHC 2878 at [17]–[18].

[10]   I also accept that a prospective costs order is appropriate for the reasons outlined in Re Parker.4 Legal proceedings are necessary to resolve the various issues, and the applicants are acting appropriately by putting these issues and the relevant evidence before the Court. They are not acting out of self-interest and Mr Crawford is an independent solicitor entitled to be paid his ordinary rates for his time, as was anticipated in the will.

[11]   Anyone wishing to oppose the application should file and serve any notice of opposition with affidavit evidence in support within 20 working days of service. Registry will advise the next mention date, but I anticipate it will be in December 2024.

Result

[12]   I make the orders in accordance with the without  notice  application dated  11 October 2024, as follows:

(a)directing that the originating application and all other documents filed to date in this proceeding, together with any minutes issued to date by the Court, be served on all named beneficiaries in the will of Monica Mary Hunt dated 9 May 2023, as well as Jillian Fromont, widow of Paul Fromont, by way of email to the email addresses appearing in Appendix B to the affidavit of Peter Fromont filed with this application;

(b)granting leave to commence the application for probate in solemn form by originating application;

(c)appointing the applicants joint administrators of the estate of Monica Mary Hunt under s 7(1) of the Administration Act 1969 pending the grant of probate or further order of the Court, and directing that the second-named applicant as administrator may receive reasonable remuneration for his time at his usual hourly rate out of the estate of Monica Mary Hunt in accordance with s 7(2); and

4      At [22]–[27].

(d)directing that the applicants are entitled to have their costs associated with this proceeding paid out of the estate and will not, personally and independently of the estate, be liable to pay the costs of any other party.

O’Gorman J