Robson v Robson

[2024] NZHC 3288

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-615495

[2024] NZHC 3288

IN THE MATTER OF

The Shirley Margaret Robson Estate

BETWEEN

SIMON JAMES ROBSON

Applicant

AND

BRONWYN JANE ROBSON

Respondent

Hearing:	5 November 2024
Appearances:	F More for the Estate
Judgment:	7 November 2024

JUDGMENT OF HARLAND J

[1]                 This judgment determines an application under s 19 of the Administration Act 1969 (the Act) which outlines the process to be followed when an executor is alleged to have neglected to prove a Will.

Background

[2]                 Shirley Margaret Robson died at Riverton on 29 October 2023 aged 91 years. She executed her last Will on 11 February 2021 in which she appointed her daughter, Bronwyn Jane Robson (Bronwyn) of Riverton, as her executor but, in the event that her daughter did not survive her, she appointed her son, Simon James Robson (Simon), as her executor and trustee.

ROBSON v ROBSON [2024] NZHC 3288 [7 November 2024]

[3]                 Bronwyn has, for reasons unknown, neither applied for a grant of probate or, in the alternative, renounced or retired from the role of executor before her appointment is to begin.

[4]                 The solicitors for the estate wrote to Bronwyn on 3 May 2024 enclosing a renunciation document for her to sign (with a return courier package) or, if she wished to be appointed as the executor, the letter requested that she telephone the estate’s lawyers offices to make an appointment before Friday 17 May 2024. The letter noted that, if the estate’s solicitors did not hear from her, they would take steps to apply to the Court to have her brother Simon administer the estate.

[5]                 The estate’s solicitors did not receive a response from Bronwyn and, accordingly, filed these proceedings. The Registrar granted an order nisi under s 19 of the Act on 24 September 2024 calling upon Bronwyn, as executor named in the Will to show cause why probate of the Will should not be granted to Simon. The date allocated for the hearing of this matter was indicated to Bronwyn in the order nisi.

[6]                 Simon, the applicant, resides in Western Australia. He deposes that a grant of probate is required immediately to enable the estate of his and his sister’s late mother to be administered in accordance with the terms of her Will.

[7]                 On 10 October 2024, Bronwyn was personally served with the proceeding and acknowledged service by signing an acknowledgement of service.

[8]                 Bronwyn did not appear at Court when the matter was called on 5 November 2024.

Discussion

[9]Section 19 of the Act provides:

19   Proceedings where executor neglects to prove will

(1)   In any case where any executor named in a will neglects or refuses to prove the will, or to renounce probate thereof, within 3 months from the death of the testator, the court may, upon the application of any other executor or executors or of any person interested in the estate or of Public Trust or of the Māori Trustee or of any creditor of the testator, grant an

order nisi calling upon the executor who so neglects or refuses to show cause why probate of the will should not be granted to that executor alone or with any other executor or executors or, in the alternative, why administration should not be granted to the applicant or some other person.

(2)   Upon proof (whether by affidavit or otherwise) of service of the order, or upon the court dispensing with service of the order, if the executor who is so called upon does not appear or upon cause being shown, the court may make such order for the administration of the estate, and as to costs, as appears just.

…

[10]             Because Bronwyn did not appear at the hearing, the provisions of s 19(2) of the Act therefore enable me to make such order for the administration of the estate and as to costs as appears just. Mr Moore submitted that I should make the order nisi absolute and order that Simon be appointed as the executor and trustee to administer the estate.

[11]             Section 19 does not cover the position regarding orders nisi being made absolute whereas s 61 of the Act does. Section 61 applies where a caveat has been lodged under s 60 against any application for administration. It provides that the Court may grant an order nisi in certain circumstances and, in ss 61(c) and (d), the Act specifically allows for such orders to be made absolute in certain circumstances. The fact that s 19 does not refer to an order nisi being made absolute raises the question as to whether this is required or not.

[12]             Making an order nisi absolute is, in my view, preferrable. Certainly, the breadth of s 19(2) enables me to do this even though the section does not specifically refer to orders nisi being made absolute. However, to be clear in this case, the position can be covered by making the order nisi absolute and by also making specific orders granting the application as sought.

[13]             I have read the affidavit filed by Simon. He deposes that he will faithfully execute the Will in accordance with the law and, if required to, will file in the court and verify by affidavit:

(a)        an accurate inventory of the deceased’s estate; and

(b)       an account of the deceased’s estate that:

(i)is accurate;

(ii)states the dates and details of all receipts and disbursements; and

(iii)states which of the receipts and disbursements were on capital account and which on revenue account.

[14]             The last Will of the late Shirley Margaret Robson is straightforward. Her jewellery is to be gifted to Bronwyn. After payment of any debts, tax or duty payable and all funeral, monumental executorship and administration expenses, the residue of the estate is to be divided equally between Bronwyn and Simon.

[15]             I am satisfied that it is in order for Simon to be appointed as the executor and trustee of the estate of the late Shirley Margaret Robson. I am satisfied that the order nisi has been served on Bronwyn and that she has not appeared or shown cause as to why probate of the Will should not be granted to Simon.

Orders

[16]I make the following orders:

(a)        the order nisi made by the Court on 24 September 2024 is made absolute;

(b)       Simon James Robson is appointed as the executor and trustee of the last Will of Shirley Margaret Robson dated 11 February 2021; and

(c)        Simon James Robson is to file in court and verify by affidavit:

(i)an accurate inventory of the deceased’s estate; and

(ii)an account of the deceased’s estate that:

1.is accurate;

2.states the dates and details of all receipts and disbursements; and

3.states which of the receipts and disbursements were on capital account and which on revenue account.

[17]             The order outlined in (c) above does not specify a timeframe that ought to apply to it in relation to the distribution of the estate and whether a copy of the affidavit that should be served on Bronwyn. Counsel for the applicant is invited to suggest what further orders are required by filing a memorandum addressing these matters by Monday 11 November 2024.

Harland J

Solicitors:

Scholefield Law, Invercargill.