Oxenbridge
[2024] NZHC 299
•23 February 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-688
[2024] NZHC 299
IN THE MATTER
AND
of the Estate of Sally Oxenbridge IN THE MATTER
of Part 27 of the High Court Rules
BETWEEN
JANE RUTH SCOTT and
REBECCA MARY SULLIVAN
Applicants
Hearing: On the papers Judgment:
23 February 2024
JUDGMENT OF HARLAND J
[1] This judgment determines an application for probate in solemn form in respect of which the Court has been asked to exercise its discretion to grant probate in common form. I have decided to grant the application for probate in common form for the reasons set out below.
Background
[2] The proceeding relates to the estate of Sally Oxenbridge who died at Christchurch on 2 October 2023.
[3] Mrs Oxenbridge’s last Will was dated 30 April 1993. The applicants, two of her daughters, were named as her executors and trustees.
RE: OXENBRIDGE [2024] NZHC 299 [23 February 2024]
[4] Mrs Oxenbridge had six children. As her husband pre-deceased her, her last Will states that her six children will inherit her estate as tenants in common in equal shares.
[5] Mrs Oxenbridge made a codicil on 17 August 2007 which inserted into her last Will a provision forgiving any debts owed to her at the date of her death by any of her children. The codicil also provided that the value of any debts outstanding would not be called into account in respect of the share of her residuary estate which that child received under her Will.
[6] Mrs Oxenbridge then executed a document dated 22 June 2011 which purported to revoke the 2007 codicil. However, as this amendment was not witnessed, it fails the validity requirements set out in s 11 of the Wills Act 2007.
The application
[7] The applicants cannot apply for probate in common form where there is uncertainty about whether documents are testamentary or where there is uncertainty about the proper execution of a document. The applicants have therefore applied for probate in solemn form. An affidavit by one of the applicants was filed in support of the application. A memorandum of counsel was also filed in support of the application.
[8] Despite seeking probate in solemn form, the applicants are also seeking the Court’s direction under r 27.8 of the High Court Rules 2016 (HCR) that the application for probate be treated as a without notice application for probate in common form and that evidence in respect of the application be given by affidavit.
[9] In support of the without notice application, six affidavits have been filed confirming that each of the beneficiaries agree that:
(a) they do not owe money to their late mother Mrs Oxenbridge; and
(b) they are not aware of any of their siblings owing money to her.
[10] Each also confirms they wish to proceed with probate on the basis that the document dated 22 June 2011 by their late mother be ignored because it is not valid on its face and has no practical effect.
Decision
[11]Rule 27.8 of the HCR provides:
27.8 Compromises
(1)This rule applies if an application under rule 27.6 is the subject of a compromise, whether or not a statement of defence has been filed.
(2)The court may direct—
(a)that the application is to be treated as an application under rule 27.4; and
(b)that evidence on the application may be given by affidavit.
Rule 27.6 deals with applications in solemn form and r 27.4 applies to an application made without notice.
[12] There is limited case law in relation to r 27.8. Counsel, in his memorandum,1 referred to Ball v Saint where the Court observed the following:2
Rule 27.8 recognises that when the parties to an application for a grant of probate in solemn form reach a compromise the Court has a discretion instead to grant probate in common form.
[13] I note that Ball v Saint is not a case on all fours with this case and the observations of the Court on that occasion are obiter but effectively reflect the provisions outlined in r 27.8.
[14] I was also referred to Rakich v Cox,3 where an application for probate in solemn form was treated as a without notice application under r 27.4 because a compromise had been reached. In that case, the validity of a second will had been put in issue, but
1 Dated 20 December 2023.
2 Ball v Saint [2023] NZHC 814 at [16].
3 Rakich v Cox [2015] NZHC 703.
the parties agreed it was not valid and that probate should be granted in respect of the first will.4
[15]I agree that, in this case, it is appropriate to treat the application as one under r
27.4 because:
(a) the beneficiaries have reached a compromise and have requested it be dealt with in this manner. They have all had a chance to be independently advised, as their affidavits reveal;
(b) the amendment made to the late Mrs Oxenbridge’s Will in 2011 is invalid on its face. The final Will and codicil entered into in 2007 should therefore form the testamentary document;
(c) the current case does not involve an issue of testamentary capacity which would oblige the Court to investigate it further despite the compromised position reached by the beneficiaries;
(d) there is no practical effect of this course of action being followed in any event due to the fact that there were no debts outstanding at the date of the late Mrs Oxenbridge’s death; and
(e) treating the application as one under r 27.4 allows the evidence to be given by affidavit, and for probate to be granted in a cost-efficient way is in the best interests of the estate and the beneficiaries.
Result
[16]I therefore grant the following orders:
(a) under r 27.8:
(i)the application for probate in solemn form is to be treated as a without notice application under r 27.4; and
(ii)the evidence in the application is to be given by way of affidavit; and
4 At [20].
(b) that probate be granted in common form in respect of the Will dated 30 April 1993 and the codicil dated 17 August 2007.
Harland J
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