Public Trust v Rose - [2024] NZHC 1507

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-000148

[2024] NZHC 1507

UNDER Section 80 of the Public Trust Act 2001

AND

Part 19 of the High Court Rules

IN THE MATTER

an originating application for the

appointment of Public Trust as administrator of the Estate of Warren Thomas Rose

BETWEEN

PUBLIC TRUST

Applicant

AND

LYNETTE JOY ROSE as named executor of the Estate of Warren Thomas Rose Respondent

Hearing: (On the papers)

Counsel:

D M Abriscossow for Applicant D D Vincent for Respondent

Judgment:

10 June 2024

JUDGMENT OF LA HOOD J

(Costs)

[1] On 21 May 2024, I granted the Public Trust’s application for orders to be appointed as administrator of the Estate of the late Warren Thomas Rose (the deceased).1 I was satisfied, pursuant to s 80 of the Public Trust Act 2001, that Mr Rose had died testate and an application for probate had not been made within three months after the date of his death. I was required to grant the application unless the deceased’s wife, Lynette Joy Rose, as executor of the deceased’s will, had either

1 Public Trust v Rose HC Wellington CIV-2024-485-148, 21 May 2024 (Minute of La Hood J).

PUBLIC TRUST v ROSE [2024] NZHC 1507 [10 June 2024]

applied for probate or satisfied me that the delay in making application was unavoidable or accidental. Mrs Rose did not attempt to establish those matters and did not oppose the application.

[2]The parties cannot agree on costs. I am therefore required to determine them.

Background

[3] The following background is drawn from my 21 May decision. The deceased passed away on 26 February 2023, leaving a will dated 28 April 2022. In addition to Mrs Rose, the deceased is survived by his two adult children from a previous marriage, Ricky George Rose (aged 55) and Ross Allan Rose (aged 57) (the children).

[4] The deceased and Mrs Rose started living in a de facto relationship in about mid-2020 and were married on 30 October 2021. The deceased had assets of only
$6,985.11 in his sole name at the date of his death and Mrs Rose was not required to apply for a grant of probate if that was the full extent of his estate. However, Mrs Rose has retained substantial assets, which were jointly owned with the deceased. It is unclear exactly the extent of these assets, but Mrs Rose has at least a villa in a retirement complex and bank deposits that total more than $1 million.

[5] The orders were necessary for the Public Trust, as personal representatives of the deceased, to continue its application to the Family Court for leave to apply for orders pursuant to the Property (Relationships) Act 1976 against Mrs Rose in relation to the substantial property retained by Mrs Rose (the PRA proceedings).

[6] The deceased’s children have attempted to negotiate with Mrs Rose for a share of the assets retained by her but that…

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 Rose

Details

AGLC: Public Trust v Rose [2024] NZHC 1507
Case: [2024] NZHC 1507
Decision Date: 10 June 2024

CaseChat Overview and Summary

The High Court of New Zealand, Wellington Registry, considered an application by the Public Trust to be appointed as the administrator of the estate of Warren Thomas Rose, who died testate on 26 February 2023. Lynette Joy Rose, the deceased's wife and named executor of his will, did not oppose the application. The primary legal issue was whether the delay in applying for probate was unavoidable or accidental, as required under section 80 of the Public Trust Act 2001. Given that Lynette Joy Rose neither applied for probate nor demonstrated that the delay was unavoidable or accidental, the court granted the Public Trust's application to be appointed as administrator of the estate.

The court's reasoning focused on the provisions of the Public Trust Act 2001 and the High Court Rules. Section 80 of the Act mandates the appointment of the Public Trust as administrator if an application for probate is not made within three months after the testator's death, unless the executor satisfies the court that the delay was unavoidable or accidental. Since Lynette Joy Rose did not meet these conditions, the court found no reason to deny the Public Trust's application. The court also addressed the costs associated with the application, determining that the Public Trust's costs should be borne by the estate rather than Lynette Joy Rose personally. The Public Trust had sought costs on a 2B basis, arguing that the application was necessary for the deceased's children to pursue Family Court proceedings to challenge Lynette Joy Rose's retention of substantial assets. The court concluded that the Public Trust's actions were reasonable and that the application was not opposed, leading to the order that the estate should cover the Public Trust's costs amounting to $8,804.

Orders