Newman, re HC Hamilton CIV 2010-419-888

[2010] NZHC 1235

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2010-419-000888

UNDER  the Wills Act 2007

IN THE MATTER OF     the estate of Cheryl Margaret Newman

AND

IN THE MATTER OF     an application for grant of probate by

Brenda Leeanne Newman

(On the papers)

Counsel:         WJ Scotter for applicant

Judgment:      21 July 2010 at 4:30pm

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for probate in solemn form]

Solicitors:           Harkness Henry, Private Bag 3077, Hamilton

NEWMAN ESTATE  HC HAM CIV 2010-419-000888  21 July 2010

[1]      Application is made by the mother of the deceased for probate in solemn form in respect of a document dated 5 November 2009.

[2]      The application is made in reliance on the Wills Act 2007, s 14.

[3]      The applicant seeks orders in relation to two preliminary matters, namely:

a)        Pursuant  to  r 19.5  permission  to  commence  this  proceeding  by originating application; and

b)        Directions as to service.

[4]      Applications  for  probate  in  solemn  form  are  dealt  with  in  r 27.6  and following of the High Court Rules.

[5]      Rule 27.6(4) provides that:

27.6     Applications in solemn form

…

(4)The procedure for dealing with the application is the same as for an ordinary proceeding, subject to the rules in this Part.

[6]      Rule  27.9  deals  with  pleadings  which  relate  to  the  position  where  the allegation is that the will is invalid.  The relevant parts of the rule provide:

27.9     Pleadings

…

(3)      The pleading must state the substance of the case against validity.

(4)       If  the  allegation  is  that  the  will's  execution  was  not  valid,  the pleading must state the facts on which the allegation is based.

(5)       If the allegation is that the will-maker did not have testamentary capacity  when  the  will  was  executed,  the  pleading  must  state whether the incapacity lay in any or all of the following:

(a)      the will-maker's lack of ability to comprehend or recollect the extent of his or her estate; or

(b)       the will-maker's lack of ability to comprehend or recollect the claims of persons excluded from participating in his or her estate; or

(c)the  will-maker's  insane  delusions  about  the  persons  who have claims on his or her estate; or

(d)      some other specified incapacity.

[7]      The High Court Rules contemplate that an application for probate in solemn form where invalidity is at issue will be by way of proceedings issued in the ordinary way, in particular, with pleadings which comply with the rules contained in the High Court Rules, Part 5 Subpart 4.

[8]      An application for probate in solemn form and in reliance on the Wills Act

2007  is  not  a  matter  referred  to  r 19.2  which  permits  applications  by  way  of originating application.   It is necessary, therefore to consider whether this type of proceeding  should  be  permitted  to  be  commenced  by originating  application  in reliance on the provisions of r 19.5.  An application for permission to commence a proceeding by originating applications was examined in Commissioner of Inland

Revenue v McIlraith:[1]

[1] Commissioner of  Inland  Revenue v  McIlraith HC  Hamilton M162/02, 19  February 2003  per

Randerson J. 

I am satisfied that matters have  moved well beyond the position which applied in 1989 and a review of the matters now specifically included under r 458D [now r 19.5] shows that Part IVA [now Part 19] is intended to have much  wider  application than  earlier  envisaged.   The  same  point  is  also demonstrated by the number and variety of cases in which leave has been granted  to  use  the  Part IVA  procedure  under  the  “interests  of  justice” provision.

[9]       In Watercare Services Ltd v Registrar of Companies[2] the position in relation to an application to restore a company to the register was considered.

[2] Watercare Services Ltd v Registrar of Companies HC Auckland CIV 2004-404-2063, 16 June 2004 per Associate Judge Faire.

[10]     The authorities disclose that where an application involves full and proper inquiry into  the  facts  and  there  is  the  possibility of  opposition,  the  originating application procedure will not generally be appropriate.  A consideration of the notes to r 19.5 in McGechan on Procedure supports this position.

[11]     When I consider the specific direction contained r 27.6(4) and those parts of r 27.9 referred to in [6], I reach the conclusion that an originating application is not the appropriate way to commence an application for probate in solemn form.  The applicant  should  use  the  general  procedure  and  file  a  statement  of  claim  in accordance with Part 5 in the usual way.

[12]     The second matter concerns directions as to service.   This is referred to in r 27.7.  The persons who have a clear interest in such a proceeding are:

a)        a  person  who  may  be  entitled  to  apply  for  administration,  if  the applicant does not apply;

b)        Any person who has lodged a caveat under r 27.11;

c)        The parties who may have an interest in the result of the application.

It was said in Estate of Malcolm Ross Hickford (deceased):[3]

[3] Estate of Malcolm Ross Hickford (deceased) HC Napier CIV 2009-441-369, 13 August 2009 at [4]

per McKenzie J.

The most important consideration in determining the appropriate procedure must be the need to ensure that all persons who may be affected by the making of an order have a proper opportunity to be represented in the proceedings. That must in this case include all persons who would benefit under the 1968 will, which would be operative if the declaration of validity sought were not made. There is a copy of that will in evidence before me. If that will were operative, its effect would be that the whole estate would go to Mr Hickford’s three children. Each of the children has filed an affidavit supporting the present application. There is accordingly no need to require an application to be made on notice to them. There are, apart from the children and Ms Young, no persons who will be affected by the decision as to whether the 1968 will remains operative, or whether a declaration is made declaring the 2008 draft will valid. Accordingly, I am satisfied, in terms of r 7.45 of the High Court Rules, that the application affects only the applicants and the other children, all of whom support the application, and that accordingly the interests of justice require the application to be determined without serving notice of the application.

[13]     The  applicant  has  suggested  service  on  the  deceased’s  husband,  adult children and counsel appointed to represent a minor child of the deceased.  Clearly, those parties have an interest in the outcome.  They are the parties who would be entitled to apply under the Administration Act 1969, Part 3 if, in fact, there is an intestacy in this case.

[14]     What I have not been provided with, however, is evidence as to whether any search has been made of prior wills which might identify some other person who is entitled to apply or may well have an interest in the outcome.   Counsel should therefore arrange for the appropriate affidavit, once such a search has been made, to be filed.

[15]     I  mentioned  the  fact  that  one  of  the  deceased’s  children  is  a  minor. Mr Richard Havelock Knox Jerram, barrister of Hamilton, has undertaken to act as guardian  ad  litem  and  counsel  for  the  minor,  Alexander  Ryan  Evans.    It  is appropriate that he be appointed.

[16]     Accordingly, and for the reasons set out above, I order as follows:

a)       The application to  commence  a proceeding for probate in solemn form by originating application is refused;

b)        A statement of claim and notice of proceeding shall be filed;

c)       Richard Havelock Knox Jerram, of Hamilton, barrister, is appointed to act as counsel and guardian ad litem in respect of Alexander Ryan Evans;

d)Service of the notice of proceeding and statement of claim shall be effected on the deceased’s husband, Kerry John Evans, the deceased’s adult child, Ashleigh Marie Evans, and Richard Havelock Knox Jerram; and

e)       The applicant shall file an affidavit deposing to the steps taken to ascertain what prior testamentary dispositions have been made by the

deceased, if any, and, if so, who is appointed executor and trustee and who are beneficiaries in respect of such dispositions.   The affidavit should indicate the desirability of directing service on such persons. On receipt of the affidavit it shall be referred to me for consideration

and further directions for service required in this proceeding.

JA Faire

Associate Judge