Nichols v Nafoi

[2017] NZHC 1815

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2017-485-614452 [2017] NZHC 1815

IN THE ESTATE OF

VIENA NAFOI, of Tuakiri Street, Point

England, Auckland, Widow, Deceased

BETWEEN

LELEAI NICHOLS Applicant

AND

ROBINSON NAFOI AND SENORA NAFOI

Respondents

Hearing:	1 August 2017
Counsel:	K Stirling for Applicant No appearance for Respondents
Judgment:	2 August 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 2 August 2017at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Keil & Associates, Auckland

NICHOLS v NAFOI [2017] NZHC 1815 [2 August 2017]

[1]     I have before me an application by Leleai Nichols for orders granting administration of the estate of Viena Nafoi, her mother, to her.  An order nisi was granted by the Registrar, calling upon Robinson Nafoi and Senora Nafoi, the executors named in the will, to show cause why letters of administration should not be granted to Ms Nichols.  They were required to appear in this Court at 9.00 am on Tuesday 1 August 2017.

[2]      They have not appeared and I am satisfied that the orders for administration should be granted.  After discussing the matter with counsel, I indicated that I would grant the orders and issue this judgment in due course.

Background

[3]      Viena  Nafoi  died  on  11  October  2014.    She  executed  her  last  will  and testament in 1998.  The original will, despite extensive searches and enquiries, could not be found but a photocopy was given by Ms Nichols’ sister, Senora Nafoi, to Saseve Barristers and Solicitors, who had instructions to apply for Senora Nafoi, Robinson Nafoi and Ms Nichols to be administrators of the deceased’s estate.

[4]      The file from Saseve Barristers and Solicitors reveals that requests were made for the original will of the deceased to the Public Trust, the Guardian Trust and Perpetual Trust  but  the  responses  received  were  that  there  was  no  will  for  the deceased.  In addition, Saseve Barristers and Solicitors placed a will enquiry in the Auckland District and Law Society News and received a letter advising that no response was received.  Contact was also made with Panama Le’au’anae, a barrister, who advised on the execution of the original will.

[5]      Accordingly, only a copy of the will could be produced and, ultimately, this was deemed to be sufficient by the Registrar.

[6]      Ms Nichols has deposed that she seeks administration under s 19 of the Administration Act 1969 because her siblings, the executors named in the will, have neglected to prove the will or announce probate of it within three months of the death   of  the  will-maker.      It   is   unnecessary  to   traverse  the  detail   of  the

correspondence and attempts made by the applicant to deal with her siblings; the short point is there were extensive attempts and they did not produce an outcome.

[7]      Ms Nichols also deposes that she is the daughter of the deceased and one of the residuary beneficiaries of the will, as are her two siblings.  She says she is not survived by any other children.  However, the Registrar had noted that, in terms of her mother’s death certificate, a further person, Mya Vaivasa Nafoi, is noted as a child of the deceased.  Ms Nichols has produced further affidavit evidence that, in short, Mya is not the biological child of the deceased but lived with her family from about one year of age.  I come back to the significance of this below but it does not, in my view, impact upon the outcome of this application.

Subsidiary issue

[8]      A subsidiary issue concerns the dating of the will.  It is simply dated 1998 with no particular date identified.  Enquiries with the solicitor who assisted in the drafting of the will, together with the witness of execution, were unable to identify a precise date, there being no record to support one.  I enquired of Mr Stirling whether or not it was necessary to go down a validation process.  But he helpfully cited to me

the case of Re Samson1  (in fact brought to his attention by the Registrar).   In that

case,  the  Court  noted  where  a date is  incorrectly stated  on  a will,  an  affidavit identifying another date will be sufficient to justify a change. Here, the will purports to have been executed in 1998. The affidavit evidence proves this, but does not identify an exact date.  I am satisfied the affidavit evidence is sufficient.  Section 11 of the Wills Act 2007 does not impose any date requirements for the validity of a will.

[9]      I am therefore satisfied that a validation process is not required.

Assessment

[10]     Section 19 of the Administration Act 1969 relevantly provides:

19       Proceedings where executor neglects to prove will

1      Re Samson (1910) 29 NZLR 480.

(1)       In any case where any executor named in a will neglects or refuses to prove the will, or to renounce probate thereof, within 3 months from the death of the testator, the court may, upon the application of any other executor or executors or of any person interested in the estate or of Public Trust or of the Māori Trustee or of any creditor of the testator, grant an order nisi calling upon the executor who so neglects or refuses to show cause why probate of the will should not be  granted to that  executor  alone or with  any other  executor  or executors or, in the alternative, why administration should not be granted to the applicant or some other person.

(2)       Upon proof (whether by affidavit or otherwise) of service of the order, or upon the court dispensing with service of the order, if the executor who is so called upon does not appear or upon cause being shown, the court may make such order for the administration of the estate, and as to costs, as appears just.

…

[11]     As an order nisi has been properly made and served on the executors of the will, and there being proof of service has been provided, I consider it is just to grant the orders as sought.  The applicant has taken all necessary steps to secure the proper administration of the will and the executors have been unwilling and/or refused to do so.  They have not responded to the proceedings and, accordingly, it is appropriate that the application for administration as sought by Ms Nichols be granted.

Supplementary note

[12]     At [7] I observed there was evidence that Mya, while not a biological child, was a member of the family from a young age.  While I do not make the present orders conditional upon this direction, the executor of the will should take steps to notify Mya of the outcome of this process. She should have the opportunity to make whatever claim that she may have against the will.