Public Trust

[2025] NZHC 938

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2025-454-000037

[2025] NZHC 938

UNDER	Part 19 and Part 27 of the High Court Rules 2016
IN THE MATTER OF	an originating application by PUBLIC TRUST, of Wellington, an autonomous Crown entity established under the Public Trust Act 2001, as executor of the estate of William Edward Stanley Robinson, for a grant of probate in solemn form

On the papers:
Appearances:	G M Cairns for Applicant
Judgment:	16 April 2025

JUDGMENT OF GRAU J

Introduction

[1]                 On 3 April 2025, the Public Trust filed an originating application seeking a grant of probate in solemn form in respect of the will of Mr William Edward Stanley Robinson (the deceased) dated 1 December 2006 (the Will).

[2]                 Alongside that application, the Public Trust filed three accompanying without notice applications, namely for leave to commence a proceeding by originating application, directions as to service, and for the appointment of the Public Trust as temporary administrator of the deceased’s estate.

[3]                 The application for appointment as a temporary administrator is said to be urgent, for the reasons outlined below.

PUBLIC TRUST [2025] NZHC 938 [16 April 2025]

Background

[4]                 The Will provided for the appointment of the Public Trust as executor and trustee of the estate of the deceased, and for the establishment of a life interest trust in the deceased’s home and its income for the deceased’s wife, Betty Margaret Robinson (Betty). The residuary estate (excluding the home) was also to pass on to Betty. The Will stated that at the end of that life interest trust for Betty, the house was to be sold and the proceeds divided between the deceased’s three children in equal shares.

[5]                 The deceased passed away on or around 31 March 2013, and was survived by Betty and the children.

[6]                 In May 2013, the Public Trust filed an election to administer the deceased’s estate.1 At the time of this election, the estate’s assets were a 50 per cent interest in the property at 18 Hereford Street, Levin (the Levin Property), owned as tenants in common in equal shares with Betty, and a cash reserve of approximately $12,276.86. The various estate expenses included funeral costs and Public Trust fees. The estate property in total had an estimated value of $90,000 in 2013.

[7]The Public Trust distributed the net residuary estate, which amounted to

$3,434.07, to Betty during the executor’s year.

[8]                 In July 2024, Betty passed away, meaning her life interest in the Levin Property expired. Betty’s last will also appointed the Public Trust as executor and trustee for her estate, and for her estate to be divided equally between the children.

[9]                 The Public Trust, separately as executor of Betty’s estate and as executor of the deceased’s estate) marketed the Levin Property for sale, and on 4 December 2024 entered into an unconditional agreement for sale and purchase (ASAP) with settlement scheduled for 16 January 2025.

1      Under s 93 of the Public Trust Act 2001, the Public Trust can administer estates valued less than

$120,000 without a grant of probate. The Public Trust need only file an election to administer in the Court Registry and proceed with estate administration.

[10]            However, prior to entering into the ASAP, the Public Trust erroneously withdrew its election to administer, due to a misunderstanding of the Public Trust’s obligations where an estate has increased in value since the election to administer has been filed.

[11]The deceased’s half share in the Levin Property is reportedly now worth

$200,000, an increase of $120,000 since the deceased’s death. A senior trustee at the Public Trust has deposed that she mistakenly believed the Public Trust needed to withdraw its election to administer and apply for probate due to this increase in value, given s 93 of the Public Trust Act allows for elections to administer to be made only in respect of estates valued under $120,000.

[12]            Before the settlement date, the Public Trust sought to rectify the situation by advising the Court Registry that the memorandum it had filed withdrawing its election to administer was filed in error. It sought permission to withdraw or retract the memorandum so that the election to administer could remain in place. However, the Court Registrar informed the Public Trust that it could not withdraw the memorandum and the Public Trust would have to file a new election to administer or apply for probate in the alternative.

[13]            The Public Trust had anticipated that an urgent application for probate in common form might have resolved the issue, however it became aware of information that raised potential concerns about the testamentary capacity of the deceased when he executed the Will, namely that he was suffering from dementia at the time. The Public Trust consequently deemed it appropriate to seek a grant of administration in solemn form to finalise the administration of the deceased’s estate.

[14]            The only difference between the deceased’s earlier 2001 will and the Will is that the residuary estate, excluding the Levin Property, passed to Betty as an absolute gift in full under the Will, whereas the 2001 will provided for Betty to hold the residuary estate on trust for the beneficiaries, with income payable to her and the Public Trust able to access capital to ensure Betty’s “comfort and wellbeing”.

[15]            The beneficiaries have all provided their consent to the appointment of the Public Trust as temporary administrator.

[16]            The Public Trust has been unable to settle the sale of the Levin Property, because it is no longer validly appointed as the estate’s administrator. Settlement should have taken place in January 2025. Penalties for late settlement are presumably accruing.

Appointment of a temporary administrator

[17]            Section 7 of the Administration Act 1969 provides that where any legal proceedings concerning the validity of a will are pending, the Court may grant administration of the estate to a temporary administrator.

[18]            In Re Amundson, the Court took the view that to make a temporary administrator order, the following three conditions should be met:2

(a)there must be a legal proceeding touching the validity of the will of a deceased person or the grant of administration; and

(b)it must be necessary to grant an order for interim administration to preserve and manage the assets of the estate pending the resolution of the proceedings; and

(c)the proposed appointee must be suitability qualified to perform the tasks of the administrator and must have sworn to faithfully administer the estate.

[19]            I am satisfied that these three conditions are met. There is an application for probate in solemn form before the Court, and the appointment of the Public Trust as a temporary administrator is necessary to preserve and manage the assets of the estate, as otherwise the sale of the Levin Property will not proceed and therefore the estate will not be able to be distributed amongst the beneficiaries promptly. As noted by

2      Re Amundson [2015] NZHC 1271.

counsel for the Public Trust, temporary administrator orders have been granted previously in circumstances involving a residential property.3 Given the Public Trust appears to have managed the deceased’s estate effectively for over 10 years (leaving aside the erroneous withdrawal of its election to administer), I consider that it is suitably qualified to act as administrator.

[20]            However, I do not consider it appropriate that the costs incurred in respect of the application for temporary administration should be payable out of the deceased’s estate. The withdrawal of the election appears to have been entirely the fault of the Public Trust, and although the Trustee was merely trying to ensure the Trust remained compliant with the Public Trust Act 2001, this error has led to a delay in settling the sale and penalties for late settlement accruing. It also remains unexplained why this “urgent” application has been brought now, some three months after the settlement date. Accordingly, I consider that the costs and disbursements of this application are properly payable by the Public Trust rather than the estate, which is already a modest one.

Leave to commence proceeding as an originating application

[21]            The Public Trust seeks leave to commence the application for probate in solemn form as an originating application, pursuant to pt 19 of the High Court Rules 2016 (HCR). Since an application for probate in solemn form is not provided for as of right under r 19.2 of the HCR, the Court may permit the proceeding to be commenced by originating application only if it is in the interests of justice.4

[22]            It is apparent that it is in the interests of justice for the proceeding to be commenced by way of originating application. Given the narrow issue at hand, namely the testamentary capacity of the deceased, and the modest size of the estate, there is no need for particularised pleadings or discovery for the issues to be determined. As noted in Solar Bright Ltd v Martin, it is in the interests of justice for the Court to secure the just, speedy and inexpensive determination of the proceedings.5

3      See Public Trust v Andrews [2023] NZHC 2245 and Re Lowe [2024] NZHC 2067.

4      High Court Rules 2016, r 19.5.

5      Re Public Trust [2023] NZHC 1417.

[23]            Thus leave to commence the proceeding as an originating application is appropriate in this case.

Directions as to service

[24]            Lastly, the Public Trust seeks directions that the application for grant of probate in solemn form be served on Neale Edward Robinson, Ian Dudley Robinson, and Shona Louise Robinson, being the beneficiaries named in the Will and 2001 will, as well as the Public Trust in its separate capacity as executor of Betty’s estate. The directions are sought on the basis that those to be served are the only persons affected by the application.

[25]            The Public Trust also seeks the order to appoint it a temporary administrator to be granted on a without notice basis, given it is considered to be in the best interests of the beneficiaries, all of whom have consented to the appointment.

[26]            I am satisfied that the only persons affected by the application are those named by the Public Trust. I also accept that the order to appoint the Public Trust as a temporary administrator can be made on a without notice basis, given the beneficiaries have already consented to its appointment. Accordingly, the directions sought are appropriate.

Result

[27]I make the following orders:

(a)that leave is granted for the application for probate in solemn form to commence as an originating application;

(b)that the Public Trust is appointed as temporary administrator of the estate of William Edward Stanley Robinson;

(c)that the application for probate in solemn form is to be served on Neale Edward Robinson, Ian Dudley Robinson, Shona Louise

Robinson, and the Public Trust in its capacity as executor of the estate of Betty Margaret Robinson;

(d)that the order appointing the Public Trust as temporary administrator is made on a without notice basis; and

(e)that costs and disbursements incurred in respect of the application for appointment as temporary administration are payable by the Public Trust, and all other costs and disbursements are payable out of the deceased’s estate.

Grau J

Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Applicant