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[2017] NZHC 2922

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2655 [2017] NZHC 2922

UNDER

Sections 14 and 16 of the Wills Act 2007

IN THE ESTATE OF

PETER JOHN ROBERT DRURY of Orewa, Auckland, formerly a manager, latterly retired

Deceased

AND

DENISE PATRICIA OʼREILLY Applicant

Hearing:	On the papers
Counsel:	J Strauss for Applicant
Judgment:	28 November 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 28 November 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           North Harbour Law, Orewa

RE O’REILLY [2017] NZHC 2922 [28 November 2017]

[1]      I have before me a without notice application for leave to file an originating application, together with a without notice application for appointment of a temporary administrator.

Background

[2]      Mr Peter Drury died on 28 July 2017.  He is survived by his two children, Denise O’Reilly, the applicant, and Stephen Drury. In 1992, he executed a will which provides, in short, that if his wife survives him, she will inherit the whole estate.  But if she does not survive him, then the estate will be split equally between the deceased’s two children and the Society for the Prevention of Cruelty to Animals (SPCA).

[3]      There is evidence Mr Drury contacted his lawyer, Mr Edward, to draw up a new will in 2007.  Mr Edward prepared a draft, but it was never executed. There was further evidence that in 2011, Mr Drury again contacted Mr Edward for the purposes of drafting a new will.  Mr Edward ultimately drafted a new will based on the 2007 draft, but it appears it was never executed because Mr Drury intended to change the will to provide for all his grandchildren, not just Stephen’s children.  A document headed “Final request of Peter John Robert Drury” was also located on his computer. Completing the present picture, the SPCA has been advised of these proceedings and agreed to abide by the decision of this Court.

Assessment

[4]      The originating application the applicant wishes to bring is for orders, pursuant to either ss 14 or 16 of the Wills Act 2007, declaring the draft will found on the deceased’s computer valid or alternatively revoking his 1992 will.  I am satisfied this matter can proceed by way of originating application, particularly as all interested parties are on notice of the proceedings and it will be expeditious to proceed in that manner.

[5]      I also consider it appropriate to appoint a temporary administrator.  Section 7 of the Administration Act 1969 provides:

7        Administration pending legal proceedings

(1)       Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant of administration, are pending, the court may grant administration of the estate of the deceased to a temporary administrator, who shall, until he or she is discharged or removed under section 21, have all the rights and powers of a general administrator, other than the right of distributing the balance of the estate remaining after payment of debts, funeral and testamentary expenses, duties, and fees, and every such temporary administrator shall be subject to the immediate control of the court and act under its direction.

(2)       The court may, out of the estate of the deceased, grant to a temporary administrator appointed under this section such reasonable remuneration as the court thinks fit.

[6]      As stated by the applicant, this present proceeding may take some time to be finalised.  The memorandum in support of the application also indicates that in order to preserve the estate, it is necessary that the house, which is the only substantial asset, be sold and the mortgage repaid. The balance of the proceeds is to be held on trust by North Harbour Law and distributed according to whatever order the Court may make in due course.

[7]      Against this background I am also satisfied that Denise Patricia O’Reilly, being the deceased’s daughter,  is a suitable person for the purposes  of occupying the administrator role.  In this regard, I note the only other person interested in the estate, namely, the applicant’s brother and the deceased’s only other child, supports the application.

[8]      No orders have been sought as to remuneration. I reserve leave to the applicant to apply for orders if necessary in this regard.

The originating application

[9]      In  accordance  with  the  applicant’s  request,  I  direct  that  the  originating application pursuant to ss 14 and 16 of the Wills Act be served on the SPCA.

[10]     The SPCA should then indicate in the usual way whether it wishes to be heard in relation to the application. If there is no opposition, this matter may be set down in the Duty Judge list.

[11]     There shall be orders accordingly.