Wakefield v Wakefield

[2021] NZHC 203

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1431

[2021] NZHC 203

UNDER

Section 19(1) of the Administration Act 1969 and Part 19 of the High Court Rules 2016

IN THE MATTER

Of the estate of Helena Wakefield and an originating application for an order nisi calling upon a co-executor to show cause why probate of the will should not be granted to the plaintiff

BETWEEN

DR LARRY LIONEL WAKEFIELD

Applicant

AND

HELENA PAULEEN WAKEFIELD

Respondent

Hearing:

17 February 2021

Appearances:

M Singh for the Applicant

No appearance by or on behalf of the Respondent

Judgment:

17 February 2021

ORAL JUDGMENT OF POWELL J

WAKEFIELD v WAKEFIELD [2021] NZHC 203 [17 February 2021]

[1]                  The applicant, Dr Larry Wakefield, originally applied for an order nisi under  s 19(1)  of  the  Administration  Act  1969  which   required   the   respondent, Helena Pauleen Wakefield, to show cause why probate of the will of  the  late  Helena Wakefield, dated 22 December 2008, should not be granted to Dr Wakefield alone. This order was in fact granted by Campbell J on 4 November 2020 in an earlier call in the Duty Judge list.

[2]                  Since then the application came before van Bohemen J on 18 November 2020. In a minute of the same date his Honour reviewed the history of the proceedings and noted that Ms Wakefield had attended Court before him and indicated that she wished to  take  part  in  the  proceedings.   Following  discussion  with  Ms  Wakefield,   van Bohemen J recorded that he had discussed the issues with her including that it would be necessary to determine Dr Wakefield’s application and the fact that she now faced an application for costs in excess of $12,000 and that claim for costs would increase if the application went to a hearing. Justice van Bohemen directed that if  Ms Wakefield wished to participate in the proceedings she was to file and serve any evidence in opposition to Dr Wakefield’s application by 22 January 2021.

[3]                  Since the last call of this matter Ms Wakefield has taken no steps and has not appeared in Court this morning. As a result, Mr Singh, on behalf of Dr Wakefield, seeks an order granting probate in favour of Dr Wakefield as the sole executor of the estate of Helena Wakefield. Having reviewed the file, including the earlier decisions that have been made, and noting that Ms Wakefield has had every opportunity to participate if she wished to, I agree that the orders sought by Mr Singh are appropriate and should be made.

[4]I therefore make the following orders:

(a)Probate of the estate of Helena Wakefield is granted  in  favor  of Larry Lionel Wakefield as the sole executor of the estate;

(b)Helena Pauleen Wakefield is to pay costs to Larry Lionel Wakefield in the sum of $19,396.10 (inclusive of GST), being costs of $17,273.00 and disbursements of $2,123.10 previously invoiced to Dr Wakefield,

together with further costs in the sum of $2,446.05 (inclusive of GST) incurred by Dr Wakefield and not yet invoiced to him, a total sum of

$21,842.15. This sum is to be paid out of Ms Wakefield’s share of the estate of Helena Wakefield.

Powell J