Parker

[2022] NZHC 2878

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000478

[2022] NZHC 2878

IN THE MATTER OF

the Wills Act 2007 and the Administration Act 1969

AND

IN THE MATTER OF

An application by:

LARENA JOY BROWN, of Christchurch, Counsellor, for an order declaring a document to be a valid will of the late CHRISTINE DELLANY PARKER and for

an order appointing temporary administrator and prospective costs order

Applicant

Hearing:	On the papers
Judgment:	3 November 2022

JUDGMENT OF NATION J

[1]                 Christine Dellany Parker (Christine) died on 6 September 2022 after she had been diagnosed with breast cancer. On 5 August 2022, at the instigation of her sister, Larena Joy Brown (Ms Brown), she saw a senior registered legal executive at the law firm, Cavell Leitch, and gave instructions which led to the preparation of a draft will.

[2]                 Christine was survived by two adult sons. One son, Jamie, had been living with his mother. He is a beneficiary and suffers from Asperger’s syndrome. The relationship between Christine and her other son, Nathaniel, appears to have been

Re Parker [2022] NZHC 2878 [3 November 2022]

difficult. Nathaniel had been living for a time with his mother and brother but left the house in April 2022, allegedly after the Police had to assist.

[3]                 It is claimed that clauses in the draft will reflect Christine’s instructions that she wanted her home at 357 Breezes Road, Aranui, Christchurch to go to her son Jamie, free of any mortgage and other charges, her coin and stamp collections to be gifted to Jamie, and all household chattels to be gifted to Jamie.

[4]                 The draft will also reflected Christine’s instruction that she wished her sister Ms Brown and a partner at Cavell Leitch to be the executors and trustees of her will.

[5]                 The legal executive has said Christine was undecided as to how she might recognise her relationship with Nathaniel. Possibilities as to this included leaving him a car and/or dividing the residue in the estate between her two sons.

[6]                 The estimated net value of the estate is approximately $477,000. The ratable valuation of the home is $300,000. That value in the estate would appear to include Christine’s interest in the estate of Maurice Parker through his estate’s half-interest in that property which was to be gifted to Christine under his will. At present, there is more than $20,000 owing in unsecured debts and a first mortgage liability of nearly

$7,500.

[7]                 Ms Brown has filed an originating application to have those parts of the will, which provide for Jamie to be left the home and other property, to be declared a valid will. In an affidavit, Ms Brown said her lawyer had explained to her that those parts of the estate as to which Christine was uncertain might be dealt with “in accordance with the intestacy rules”.

[8]                 That is the background to three applications I must now deal with. The first is an application for directions as to service. The second is a without notice application that Ms Brown be appointed as a temporary administrator under s 7(1) of the Administration Act 1969. The third is an application for a prospective costs order pursuant to r 14.1 of the High Court Rules 2016, as follows:

[Ms Brown] is entitled to have her costs associated with these proceedings paid out of the Estate;

[Ms Brown] will not be liable to pay the costs of any other party; and/or

Any costs that [Ms Brown] is ordered to pay to a party that contests these proceedings will be paid out of the Estate.

Directions for service

[9]                 I agree it is appropriate for the interlocutory applications to be determined on a without notice basis to avoid unnecessary costs and delay.

[10]             Jamie Marcus Parker has, in a document, formally consented to the order sought declaring the document to be a valid will and has confirmed that, despite advice, he did not wish to obtain legal advice before giving that consent. He nevertheless has an interest in how the residue of the estate is to be distributed. He is to be served with all documents filed in these proceedings and a copy of this judgment.

[11]             Copies of all documents filed in the proceedings and a copy of this judgment are also to be served on Nathaniel Parker Kahukura.

[12]             As Lorena Joy Brown is the applicant in these proceedings, there is no need for her to be served with the documents.

[13]             The draft will provides for a partner of the firm of Cavell Leitch to be a trustee, together with Ms Brown. They are acting as solicitor for Ms Brown with this application, so I make no order for service of the documents on that firm.

[14]             Through their potential appointment as a trustee and executor, that firm does have an interest in the proceedings but, given the need to avoid unnecessary costs in what is comparatively a modest estate, I do not determine any issue as to their involvement at this stage.

[15]Section 7(1) of the Administration Act provides:

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.

[16]In Re Estate of McHugh, this Court noted:1

[12]   Given this lacuna, I will, having regard to the interests of the persons with an interest in the estate, proceed on the basis that:

…

(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.

[17]             The information before the Court suggests one of Christine’s sons may oppose the application for an order declaring parts of the draft will valid as her will. There may be an issue as to whether parts of a draft will can be declared valid where there is uncertainty over other parts of the draft will.2 There may well have to be a hearing for the Court to decide this point. Even if parts of the draft will are approved as a will, there remains an issue as to how the balance of the estate is to be dealt with. All of this means it is likely there will be a delay well into 2023 before there is agreement or Court orders as to how the whole of Christine’s estate is to be distributed.

[18]             In the meantime, there needs to be an appropriate person with legal responsibility to preserve the assets of the estate, to obtain relevant information, to take the initiative in progressing the proceedings and to do all that can be done to achieve an agreement which may help to avoid cash in the estate having to be used to pay legal and other costs.

1      Re Estate of McHugh [2015] NZHC 1271.

2      This will likely require an inquiry into whether the will represents Christine’s testamentary intention – see Re Bruss [2021] NZHC 191; and Naidu v Agnew [2012] NZHC 2134.

[19]             It is apparent from her affidavit that the applicant, Ms Brown, is an appropriate person to have that responsibility. She is the sister of Christine. It would appear from her affidavit that she was close to her sister and someone who Christine trusted. She has no personal interest in Christine’s estate other than through her potential appointment as a trustee and executor. She has said she wishes to ensure that Christine’s wish for Jamie to have the home is given effect to but that wish is consistent with her wishing to see that asset preserved and managed as it needs to be pending the resolution of all issues.

[20]             The nature of the estate and the assets in it are such that temporary administration of the estate does not require the appointment of a commercial or professional trustee as a temporary administrator. The appointment of Ms Brown to act in that capacity will assist in avoiding unnecessary costs.

[21]             I accordingly make an order appointing Larena Joy Brown of Christchurch, counsellor, as temporary administrator in the estate of Christine Dellany Parker.

[22]             Costs in civil proceedings are at the discretion of the Court.3 In estate cases, it has been recognised that, when a trustee has responsibly brought proceedings where the litigation is necessary because of the state in which the will-maker left their affairs or where there is an issue as to the execution of the will, costs will not normally be visited on the person bringing the proceedings, regardless of the result.4

[23]As stated in Re Young:5

It is the duty of an executor of any will which he believes may be the valid last will of the testator to propound it and to take all proper steps to prove its validity. It is not his duty to decide, in any doubtful case, whether or not he should do so, it being the function of the Court to resolve such doubt.

3      High Court Rules 2016, r 14.1.

4      Loosely v Powell [2018] NZCA 3, [2018] 2 NZLR 618 citing Re Paterson [1924] NZLR 441 (SC) at 442.

5      Re Young [1968] NZLR 1178.

[24]             A prospective costs order may be granted to provide either or both indemnity (that applicants own costs are paid from estate) and immunity (that applicant will not have to pay another party’s losses).6 Ms Brown seeks both here.

[25]             Such orders may generally be made in cases where the proceeding is not hostile and/or the applicant is not acting out of self interest.7

[26]             I accept Ms Brown has brought these proceedings to assist the Court to determine whether parts of the draft will for the deceased should be validated and to ensure assets in the estate are adequately managed until issues between prospective parties are resolved, rather than out of self interest.

[27]I accordingly make orders that:

(a)        Larena Joy Brown is entitled to have her costs associated with these proceedings paid out of the estate; and

(b)       Larena Joy Brown will not, personally and independently of the estate, be liable to pay the costs of any other party.

[28]             I decline to make an order as sought that any costs Ms Brown is ordered to pay to a party that contests these proceedings will be paid out of the estate. Ms Brown will be protected personally from having to pay any costs to another party by the second order as to costs just made. It will be for the Court to decide in due course whether any other party’s costs should be paid out of the estate.

[29]             The proceedings are now adjourned for further call in the list at 11.45 am on 12 December 2022. If either Nathaniel Kahukura or Jamie Parker wishes to oppose the application sought or to be heard further in these proceedings, they must file a notice of opposition forthwith with relevant details as to the name and address of their legal representative if they have one or of themselves personally if they do not have a legal representative. They must also file affidavits supporting their notices of

6      Woodward v Smith [2014] NZHC 407, [2014] 3 NZLR 525.

7      See discussion in McCallum Jnr v McCallum [2021] NZCA 237, (2021) 32 FRNZ 851 at [41]- [45], and Woodward v Smith, above n 6, at [39].

opposition with 20 working days of such time as they have been served with the documents as required.

[30]             The relevant documents are to be served as directed forthwith, and affidavits of service filed accordingly.

Solicitors:
Cavell Leitch, Christchurch.

Copy to:

Jamie Marcus Parker

Nathaniel Parker Kahukura.