Spencer-Marti v Crouch

[2014] NZHC 3069

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2015 [2014] NZHC 3069

UNDER

the Family Protection Act 1955 and the

Administration Act 1969

IN THE MATTER

of an originating application for orders removing family protection proceedings to the High Court; requiring an inventory and account of the estate of the deceased; and removing and replacing executors

BETWEEN

ROY SPENCER-MARTI Applicant

AND

LOUISE MARGARET CROUCH and TERENCE JAMES HIBBIT in their capacity as exectors of the estate of the late Valerie Joan Spencer

Respondents

Hearing:

1 December 2014

Counsel:

AM Halloran for applicant
BP Rooney for respondents
AJ Adams for the adult children beneficiaries of the late Valerie

Joan Spencer

Judgment:

3 December 2014

JUDGMENT OF FAIRE J

This judgment was delivered by me on 3 December 2014 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Graeme Skeates Law, Auckland James Law, Auckland LawWorks, Auckland

Spencer-Marti v Crouch [2014] NZHC 3069 [3 December 2014]

[1]      The applicant, Roy Spencer-Marti, applied to the High Court for orders:

(a)       Removing family protection proceedings from the Family Court to the

High Court;

(b)      Requiring full inventory and account of the estate of the deceased; and

(c)       Removing and replacing the respondents and certain related orders.

[2]      On 10 September 2014, Venning J ordered that the application for removal of trustees be heard first.  The Registry was directed to allocate a fixture.  The fixture for disposal of that part of the application was made for hearing on 1 December

2014.

[3]      The applicant, died in Spain on 13 September 2014. An application was filed by Joanna  Maria  Primrose  on  18 November  2014  seeking  an  order  substituting herself for the applicant, Roy Spencer-Marti.

[4]      That application was called before Brewer J on 27 November 2014.   He directed that the application for substitution be determined as a preliminary matter on 1 December 2014.

[5]      The application for substitution is opposed by both the respondent and the adult children beneficiaries of the late Valerie Joan Spencer.  In short, they question the authority of Joanna Maria Primrose and require her to formally prove the right and title to carry on the proceeding of Mr Roy Spencer-Marti.  Their position is that the  application  should  be  stayed  pending  determination  of  any  application  for probate by Joanna Maria Primrose in respect of the estate of Roy Spencer-Marti.

[6]      Mr GH Skeates, who was a New Zealand solicitor acting for the late Roy Spencer-Marti, has sworn an affidavit.  He has attached copies of documents which he says he prepared.  One, he says, is the last will of Roy Spencer-Marti.  It is dated

17 October 2013.   The  witnesses  to  that  document  give  addresses  outside New

Zealand.    It  is  not  clear  whether  the  document  was  actually  executed  in  New Zealand.  In addition, Mr Skeates has exhibited a photocopy of the death certificate of Roy Spencer-Marti.   He says that he is currently awaiting the originals to be provided to him from Spain.

[7]      Joanna Maria Primrose has sworn an affidavit.  She says that she is aware of the High Court application made by Roy Spencer-Marti.  She says that at the time of Roy Spencer-Marti’s death he was living with an ex-wife, Ingeborg Marti, in Spain. Ingeborg, in fact, informed her of Roy Spencer-Marti’s death.  She says that she has attempted to contact Ingeborg in order to chase up the originals of Roy Spencer- Marti’s will and death certificate, but so far she has received no response to her emails or telephone messages.  She says that Ingeborg was not in good health and that it was unusual that she had not replied.  She said that she would like to carry on with the proceedings and not wait for the original documents and any grant of formal administration to her in respect of Roy Spencer-Marti’s estate.

[8]      The application for substitution relies on rr 4.50 and 4.52 of the High Court

Rules. Rule 4.50 provides:

4.50     Procedure on death, bankruptcy, and devolution

In the case of death, bankruptcy, or devolution of an estate of a party to a proceeding by operation of law in circumstances where the complete settlement of all the questions involved in the proceeding is necessary, the court—

(a)       must order that a personal representative, trustee, or other successor to  the  interest  (if  any)  of  that  party  be  made  a  party  to  the proceeding, or be served with notice of it, in the prescribed manner and form on terms it thinks just; and

(b)       may make orders it thinks just for the disposal of the proceeding.

[9]      Rule 4.52 provides:

4.52     New parties order

(1)       Subclause (2) applies if, after a proceeding has commenced, there is an event causing a change or transmission of interest or liability (including death or bankruptcy) or an interested person comes into existence, making it necessary or desirable—

(a)      that a person be made a party; or

(b)      an existing party be made a party in another capacity.

(2)       An application without notice may be made for an order that the proceeding be carried on between the continuing parties and the new party (a new parties order).

(3)       The new parties order must, unless the court otherwise directs, be served on—

(a)      the continuing parties to the proceeding; and

(b)      each new party, unless the person making the application is the only new party.

(4)       The new parties order is binding on a person served from the time of service.

(5)       A person who is not already a party who is served with a new parties order must file a statement of defence in the same time frame and manner as a person served with a statement of claim.

[10]     For completeness sake, I set out sections from the Administration Act 1969 which have a bearing on this application.

[11]     Section 70 provides:

70Estate of person dying abroad not to vest without administration obtained in New Zealand

(1)       Estate in New Zealand belonging to any person who dies abroad shall not vest in any person under any bequest or devise, or under an intestacy,  or  by inheritance,  until  administration  of that  estate  is obtained in New Zealand; or, if probate or letters of administration of the estate have been granted in any place out of New Zealand, unless the probate or letters of administration are resealed in New Zealand as hereinafter provided.

(2)       Upon  the  estate  in  New  Zealand  becoming  legally  vested  in accordance  with  the  provisions  of  this  section,  the  legal  estate therein shall vest as from the time of the death of the person from whom it is obtained.

[12]     Section 74 provides:

74       Effect of sections 70 and 73

Nothing in sections 70 and 73 of this Act shall restrict the provisions of sections 64 and 65 of this Act, or the provisions of any other enactment relating to the payment or devolution of any estate without administration

[13]     Counsel filed short submissions, for which I am grateful.

[14]     It is apparent that “personal representative” is not defined in the High Court Rules or in the Administration Act.  “Personal representative” is defined in s 2 of the Trustee Act 1956 as “the executor, original or by representation, or an administrator for the time being of a deceased person”.  It is also defined in s 6 of the Wills Act

2007 as “administrator, executor, or trustee”.

[15]     Counsel’s research could find no direct authority on the meaning of “personal representative” for the purposes of r 4.50.   In Laws of New Zealand the authors state:1

The  testator’s  estate  vests  in  an  executor  from  the  testator’s  death  by operation of the will.  However, an executor has to obtain probate in order to prove this title.

The early vesting of title in an executor is recognised by the provisions of s 24(1) of the Administration Act.  Probate merely authenticates the appointment by will.2    In G v B in the Family Court at Auckland, Judge Robinson of that Court, in the context of  the  Family  Protection  Act  1955  Act  proceedings,  examined  a  number  of authorities  which  deal  with  the  authority  of  a  personal  representative.3    The authorities support the position that:

(a)      A proceeding may be issued by a person who is not the subject of a grant of probate in respect of a cause of action vested in the deceased for the purpose of preserving a claim against a limitation defence;4 and

(b)Such  a  person,  however,  cannot  obtain  a  judgment  before  having obtained a grant of probate.  In short, such a person must prove their title and entitlement to the relief sought in the proceeding.5

[16]     There is no limitation question to be considered in this case, so far as the current application is concerned because the proceeding has already been issued.

1      Laws of New Zealand Powers (online ed) at [180].

2      Re Masonic & General Life Assurance Co (1885) 32 Ch D 373.

3      G v B (2005) 25 FRNZ 437 (FamC).

4      Chetty v Chetty [1916] AC 603 (PC).

5      Ibid; Pinny v Hunt (1877) LR 6 Ch D 98 at 100.

The sole issue is who is entitled to carry on  a proceeding which was properly commenced by the late Roy Spencer-Marti in his life time.

[17]     When I consider the provisions of s 70 of the Administration Act and the authorities that  I have  referred  to,  I conclude that it is not appropriate for this proceeding to be continued at this stage, with a view to the relief being sought, until such time as the applicant for substitution has obtained a grant of probate in her favour.   Only then can she establish that she is entitled to the relief sought in the originating application.

[18]     It may prove regrettable that the fixture to resolve the substantive issue, that is whether the respondents should be removed as trustees, is delayed by the conclusion I have reached.  I cannot tell ahead of a grant of probate if that is the case. However, I record that if Joanna Maria Primrose is successful in obtaining a grant of probate, application can be made on 24 hours’ notice to have this proceeding listed in a  duty  judge  list  with  a  view  to  orders  being  made  substituting  Joanna  Maria Primrose for the applicant and for a fixture for the substantive proceeding to be granted.

[19]    Should that occur, counsel have confirmed that there would need to be consideration  given  to  whether  some  or  all  of  the  deponents  that  have  sworn affidavits in the substantive proceeding are required for cross-examination and, further, for completion of the filing and service of the respondents’ submissions. Otherwise, the matter would be ready for hearing.

[20]     I record this position so that if a grant of probate is made the matter can be dealt with expeditiously and a new fixture granted.

Orders

[21]     In view of the death of Roy Spencer-Marti:

(a)       this proceeding is stayed.  Application to lift the stay may be made on

24 hours’ notice;

(b)the application to substitute Joanna Maria Primrose is adjourned and may be brought on for hearing on 24 hours’ notice when proof of the grant of probate in respect of the estate of the late Roy Spencer-Marti

in favour of Joanna Maria Primrose is available.

Costs

[22]     Joanna Maria Primrose was forced to take this application by virtue of the death of the late Roy Spencer-Marti and the imminence of the fixture in respect of the originating application.  The evidence disclosed to me so far is that steps have been taken to secure the originals of the documents so that an application for probate

can be made and dealt with expeditiously.  In the circumstances I reserve costs.

JA Faire J