Bartlett v Gillespie

[2023] NZHC 42

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-02

[2023] NZHC 42

BETWEEN

MEGAN LISA BARTLETT AND DAVID JOSEPH EHLERS AS PRESUMPTIVE
EXECUTORS AND TRUSTEES IN THE ESTATE OF KAY ANNETTE BANNING

Applicants

AND

WILLIAM PETER GILLESPIE

First Respondent

JOANNE HELEN BROOKS
Second Respondent

BERYL MAY BANNING

Third Respondent

Hearing:

(Determined with on the papers)

Counsel:

K J Jarvis for Applicants

J G O’Neill for First Respondent

R M Lewis for Second Respondent M J Badham for Third Respondent

Judgment:

31 January 2023

JUDGMENT OF EATON J

[1]    The applicants seek an order appointing Clare Frances Marie Toomey as temporary administrator of the Estate of Kay Annette Banning (Ms Banning). The deceased died at Dunedin on 15 May 2022.

[2]    The applicants are two of the four partners, as at the date of Ms Banning’s death, in the firm of Webb Farry, Barristers and Solicitors, Dunedin.

BARTLETT v GILLESPIE [2023] NZHC 42 [31 January 2023]

[3]    Ms Banning left a document dated 15 May 2022 which the applicants believe to be Ms Banning’s last will (the will). That will appoints two of the partners of Webb Farry as at the date of her death as the executors.

[4]    On 30 May 2022, the second respondent lodged a caveat against grant of administration of Ms Banning’s estate, raising an issue as to the validity of the will. The second respondent alleges Ms Banning did not have testamentary capacity as at the date the will was made. The second respondent requested, and the applicants, and the first and third respondents, have agreed that the applicants make an application for probate in solemn form.

[5]    Pending the defended probate application, the parties have agreed that it is necessary for a temporary administrator to be appointed to preserve and manage the assets of the estate.

[6]Section 7 of the Administration Act 1969 provides:

7        Administration pending legal proceedings

(1)Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant of administration, are pending, the court may grant administration of the estate of the deceased to a temporary administrator, who shall, until he or she is discharged or removed under section 21, have all the rights and powers of a general administrator, other than the right of distributing the balance of the estate remaining after payment of debts, funeral and testamentary expenses, duties, and fees, and every such temporary administrator shall be subject to the immediate control of the court and act under its direction.

(2)The court may, out of the estate of the deceased, grant to a temporary administrator appointed under this section such reasonable remuneration as the court thinks fit.

[7]    The relevant criteria in considering a s 7 application is that there be a legal proceeding touching the validity of the will; that it be necessary to grant an order for interim administration to preserve and manage the assets of the estate pending resolution of the proceedings and that the proposed appointee be suitably qualified to perform that task.1

1      Re Estate of McQue [2015] NZHC 1271 at [11].

[8]    The applicants have filed an application for probate in solemn form. The affidavit of Ms Bartlett confirms that as at the date of her death Ms Banning owned a house in Mosgiel and had funds in bank accounts at the ASB bank. Further, the evidence is that Ms Banning has creditors awaiting payment. The caveat lodged by the second respondent has prohibited the applicants from securing the property owned by Ms Banning, ascertaining the extent of her property and paying creditors of her estate. Resolution of the defended probate application will take time to determine and I am satisfied it is necessary for a temporary administrator to be appointed to preserve and manage the assets of the estate in the meantime.

[9]    The proposed temporary administrator, Ms Toomey, has provided evidence confirming her expertise in the administration of estates. I accept she is a suitable person for appointment.

[10]   All interested parties have agreed to the appointment of Ms Toomey. The respondents have filed consents to the current application.

[11]   Accordingly, I make orders in terms of the draft order filed on 23 December 2022.

...................................................

Eaton J

Solicitors/Counsel:

Webb Farry, Dunedin – Applicants
O’Neill Devereux, Dunedin – First Respondent

Lewis Mortimer Law, Auckland – Second Respondent Thomson Wilson, Whangarei – Third Respondent