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 trustees of the McKay Family Trust, which is the deceased’s daughter’s, Theresa Josephine Margaret McKay, family trust, as third respondents; and

(c)the deceased’s grandchildren, Daniel Robert McKay, Cameron John McKay and Rebecca Hannah McKay, as fourth, fifth and sixth respondents.

[11]            Public Trust is satisfied that all persons with an interest in the estate will be served as a matter of course and no further directions as to service are required. I agree with that assessment except in one respect. The deceased’s daughter has an interest under the 2019 will in her own right and not just as a trustee of the McKay Family Trust. I direct that service of the proceedings shall be effected on the respondents, along with Theresa Josephine Margaret McKay.

Temporary administration order

[12]            As noted, Public Trust has also filed an application for an order appointing it as temporary administrator under s 7 of the Administration Act. It is anticipated that it may be some time before probate is granted.

[13]            There are administrative matters arising out of the deceased’s estate that Public Trust seeks to  address.   These include that an asset of the estate is  a property at     9 Summertime Avenue, Dunedin which is vacant. It would be prudent for Public Trust to be appointed as temporary administrator so the property can be managed, preserved and maintained.

[14]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.

[15]            In Re Amundson the Court took the view that to make a temporary administration order the following should be shown:1

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

(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

1      Re Amundson [2015] NZHC 1271.

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

[16]            I am satisfied all these conditions are met in this case. It is entirely sensible and appropriate that 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, Public Trust is named as executor and trustee. I note also that, under s 7 of the Administration Act, Public Trust is under the immediate control of the Court and must act under its direction, and that the application is not opposed.

Result

[17]There shall be orders:

(a)Directing service of the proceedings on the named respondents along with Theresa Josephine Margaret McKay in her personal capacity.

(b)Appointing Public Trust as temporary administrator of the deceased’s estate under s 7 of the Administration Act 1969.

O G Paulsen Associate Judge

Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt

Copy to:

M Andrews