Woolf, re HC Timaru CIV 2007-476-355

[2010] NZHC 1567

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2007-476-000355

IN THE ESTATE OF VIOLET ISABEL WOOLF

Deceased

(On the papers) Judgment:       9 September 2010

JUDGMENT OF FRENCH J

[1]      The deceased, Mrs Violet Isabel Woolf, died at Timaru on 15 May 2006.

[2]      Under her will, Mrs Woolf appointed her son, Alwyn Bernard Kaye, to be executor and trustee of the will but with a proviso that should he be unable or unwilling to act then she appointed Peter William Hutt of Timaru, solicitor, to be executor and trustee in his stead.

[3]      The  persons  beneficially  interested  in  the  estate  are  the  husband  of  the deceased, Mr Woolf, who has a life interest in the estate, Mr Kaye as named trustee and executor and residuary beneficiary, and Ms Virginia Woolf, daughter of the deceased as a residuary beneficiary.  Mr Kaye and Ms Woolf also received specific bequests under the will.

[4]      Sadly, the affidavit evidence discloses considerable animosity between Mr Woolf and his son, Mr Kaye.  There have been allegations and counter-allegations of a very serious nature, including dishonesty, fraud and mental health problems.

[5]      Mr Woolf opposed his son’s application for grant of probate.  Mr Woolf also applied for orders appointing Mr Hutt the executor and trustee instead.  Mr Woolf

contended that his son had shown himself to be unable or unwilling to act and that

RE WOOLF HC TIM CIV-2007-476-000355  9 September 2010

there  were  special  circumstances  triggering  the  provisions  of  s  52  of  the

Administration Act 1969.

[6]      Further, neither Mr Kaye nor Mr Hutt have confidence in the other’s ability to administer the estate impartially.  Ms Woolf has also expressed concerns.

[7]      The matter was set down for a hearing but the parties have been able to settle their differences and have applied to the Court for consent orders to be made.

[8]      What is proposed is that an independent third party, a Timaru solicitor, be granted letters of administration with will annexed pursuant to the Court’s powers under s 6(2) of the Administration Act.

[9]      The solicitor in question, Mr Clark, has confirmed his willingness to accept appointment.

[10]     I am satisfied that the orders sought are entirely appropriate.

[11]     The Court is grateful to Mr Clark for agreeing to accept appointment and to counsel for their assistance in resolving the unfortunate impasse.

[12]     There will be the following orders by consent:

(a)      That Mark William Sydney Clark of Timaru, Solicitor be granted Letters of Administration with will annexed in the Estate of Violet Isabel Woolf who died at Timaru on the 15th day of May 2006.

(b)      That  the  reasonable  costs  of  Alwyn  Bernard  Kaye,  Noel  Bernard Woolf and Peter William Hutt be paid out of the assets of the estate of the deceased.

Solicitors:         Timpany Walton, Timaru

Tripp Rolleston & Co, Timaru