Williamson v Paul

[2018] NZHC 151

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CIV-2017-485-617335 [2018] NZHC 151

UNDER	the Administration Act 1969
IN THE MATTER	Of the estate of Eileen May Paul
IN THE MATTER	of an order nisi
BETWEEN	BRONWYN MAY WILLIAMSON Applicant
AND	WARWICK DAVID PAUL Respondent

Hearing:	15 February 2018 (via AVL)
Counsel:	D P Adams for Applicant No appearance by or on behalf of Respondent
Judgment:	15 February 2018

JUDGMENT OF BREWER J

Solicitors:

WRMK Lawyers (Whangarei) for Applicant

WILLIAMSON v PAUL [2018] NZHC 151 [15 February 2018]

[1]      Mrs Eileen May Paul died on 2 August 2017.  She appointed in her will her daughter,  Bronwyn  May Williamson,  and  her  son, Warwick  David  Paul,  as  her executors and trustees.

[2]      It is now more than three months since Mrs Paul died.  Ms Williamson wants to take probate of the will and to administer the estate.   However, Mr Paul has inexplicably failed or refused to take any steps to carry out his duties as executor. Accordingly, Ms Williamson made application to the Court and obtained an order nisi requiring Mr Paul to appear this morning to show cause why probate of Mrs Paul’s will should not be granted to Ms Williamson alone.

[3]      Mr Paul has taken no steps at all.  He has not responded to correspondence from Ms Williamson or from her lawyers.  I have an affidavit of service which shows that he has all the relevant documents and proper notice of today’s hearing.  Mr Paul has filed nothing with the Court, nor communicated with the registry.   He has not appeared today.

[4]      Mr Adams, who appears for Ms Williamson, makes an oral application that probate be granted to the applicant, Ms Williamson, together with costs and disbursements.

[5]      My jurisdiction in this matter comes from s 19 of the Administration Act 1969. It provides, in summary, that in any case where any executor named in a will neglects or refuses to prove the will within three months from the death of the testator, then the Court may grant an order nisi calling upon the neglectful executor to show cause why probate of the will should not be granted to the other executor alone.  Section 19(2) goes on to provide that upon proof of service of the order, if the executor who is so called upon does not appear the Court may make such order for the administration of the estate and as to costs as appears just.

[6]      Accordingly, I grant probate of the will to Ms Williamson alone.  I grant costs as sought in Mr Adams’s schedule on a 1A basis. These are to be paid out of Mr Paul’s

share of the estate.

Brewer J