Public Trust v Andrews - [2023] NZHC 2245

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-76

[2023] NZHC 2245

IN THE MATTER of the Estate of Mervyn Stanley John Andrews

BETWEEN

PUBLIC TRUST

Applicant

AND

DESMOND CHARLES ARTHUR ANDREWS

First Respondent

AND

MAURICE RICHARD MERVYN ANDREWS

Second Respondent

AND

THERESA JOSEPHINE MARGARET MCKAY, STANLEY ROBERT MCKAY and

YBT NOMINEES LIMITED, as trustees of the MCKAY FAMILY TRUST

Third Respondent

AND

DANIEL ROBERT MCKAY

Fourth Respondent

AND

CAMERON JOHN MCKAY

Fifth Respondent

AND

REBECCA HANNAH MCKAY

Sixth Respondent

Hearing: On the papers

Counsel:

G M Cairns for Applicant M R M Andrews in person

Judgment:

18 August 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

PUBLIC TRUST v ANDREWS [2023] NZHC 2245 [18 August 2023]

This judgment was delivered by me on 18 August 2023 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Background

[1] Mervyn Stanley John Andrews (the deceased) died on or about 20 November 2021.

[2]The deceased’s last will is dated 5 July 2019.

[3]The deceased made a previous will dated 20 March 2009.

[4]Public Trust is named as executor and trustee under both wills.

[5] Public Trust is applying to the Court for a grant of probate of the deceased’s last will in solemn form or, in the alternative, a grant of probate in solemn form of the deceased’s will of 20 March 2009.

[6] Public Trust is aware there is a challenge to the 2019 will on the basis the deceased did not have testamentary capacity when he made it. The second respondent, Maurice Andrews (Mr Andrews), has lodged a caveat over the deceased’s estate.

[7] The matters before me are without notice interlocutory applications by the Public Trust, being:

(a)an application for directions as to service; and

(b)an application for an order under s 7 of the Administration Act 1969, appointing Public Trust as the temporary administrator in respect of the deceased’s estate.

[8] After considering the applications, I convened a conference with counsel and then issued a minute directing service by email of the Public Trust’s application to be appointed temporary administrator of the estate upon the respondents. While the application appeared straightforward and appropriate, I wished to give the respondents an opportunity to be heard if they opposed it. I also set the application down for a further conference on 17 August 2023.

[9] The only respondent who wished to be heard was Mr Andrews. He has concerns about the manner in which Public Trust has acted to date. I do not need to detail those matters in this judgment, but counsel has confirmed the concerns will be passed on to Public Trust. Mr Andrews confirmed that despite those concerns he does not oppose Public Trust’s application to be appointed temporary administrator.

Directions as to service

[10]Public Trust has named as parties to this proceeding the following:

(a)the deceased’s two sons, Desmond Charles Arthur Andrews and Maurice Richard Mervyn Andrews, as first and second respondents;

(b)the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Public Trust v Andrews

Details

AGLC: Public Trust v Andrews [2023] NZHC 2245
Case: [2023] NZHC 2245
Decision Date: 18 August 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the Public Trust has applied for a grant of probate for the last will of Mervyn Stanley John Andrews, dated 5 July 2019, or, alternatively, the will dated 20 March 2009. The application is contested by Maurice Andrews, the second respondent, who has lodged a caveat over the estate. The Public Trust has also applied for directions regarding service and for an order appointing it as the temporary administrator of the estate under section 7 of the Administration Act 1969. The court must determine whether the Public Trust is entitled to be appointed as temporary administrator of the estate and whether service should be directed to Theresa Josephine Margaret McKay in her personal capacity.

The court must determine whether the Public Trust has demonstrated that the appointment of a temporary administrator is necessary to preserve and manage the estate pending the resolution of the proceedings. The court must also consider whether the Public Trust is suitably qualified to perform the tasks of the administrator and has sworn to faithfully administer the estate. In this case, the court found that all the conditions for a temporary administration order were met, as the Public Trust is taking a neutral stance in the proceeding and is named as executor and trustee under both wills. The court also noted that the application was not opposed and that the Public Trust is under the immediate control of the court and must act under its direction.

The court appointed the Public Trust as temporary administrator of the deceased’s estate under section 7 of the Administration Act 1969. The court directed that service of the proceedings shall be effected on the named respondents, along with Theresa Josephine Margaret McKay in her personal capacity. The court found that it was entirely sensible and appropriate that the Public Trust be appointed as temporary administrator of the deceased’s estate in circumstances where it is taking a neutral stance in the proceeding and, regardless of which of the deceased’s wills is admitted to probate, the Public Trust is named as executor and trustee. The court also noted that, under section 7 of the Administration Act, the Public Trust is under the immediate control of the court and must act under its direction.

The court made the following orders: (a) directing service of the proceedings on the named respondents along with Theresa Josephine Margaret McKay in her personal capacity; and (b) appointing Public Trust as temporary administrator of the deceased’s estate under section 7 of the Administration Act 1969.

Orders