Estate of Proctor

[2024] NZHC 1149

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-485-624077

[2024] NZHC 1149

IN THE MATTER OF

the Estate of

MARGARET MARY PROCTOR

BETWEEN

MARTIN MICHAEL PROCTOR and

DALENE ANNE PROCTOR as Executors Applicants

AND

KERRY MARIA TE WHERO as Executor Respondent

Hearing:	9 May 2024
Appearances:	A McDonald for Applicants
Judgment:	9 May 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 9 May 2024 at 4 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:

A McDonald, Auckland

Daniel Overton & Goulding, Auckland

Re ESTATE OF MARGARET MARY PROCTOR [2024] NZHC 1149 [9 May 2024]

[1]    This proceeding came before me in the Duty Judge list on 9 May 2024. The applicants, Michael Proctor and Dalene Proctor, seek an order appointing them as executors of the will  of  Margaret Mary Proctor, who died at Auckland  on about   26 May 2015. An order nisi was granted on 19 April 2024 calling upon a third named executor in the will, Kerry Maria Te Whero, to show cause why probate of the will should not be granted to the two applicants alone.

[2]I granted the application. I now set out my reasons for doing so.

The application

[3]    The will of Margaret Proctor dated 11 May 2012 named her three children as the executors. During the years after Margaret Proctor died, there were discussions about resolving Estate matters, but no resolution was reached and no application for probate had been made. Then on 20 December 2023, solicitors acting for Dalene Proctor wrote to Ms Te Whero seeking to progress an application for probate of the will. They invited Ms Te Whero to confirm whether she accepted, or wished to renounce, her appointment as one of the three executors. Ms Te Whero did not respond to the letter dated 20 December 2023. She did not join the application for the grant of probate, nor did she sign any deed of renunciation.

[4]    In those circumstances, the two applicants applied for and were granted an order nisi dated 19 April 2024 requiring Ms Te Whero to show cause. That order nisi was personally served on Ms Te Whero at her address in Raglan on 30 April 2024.

[5]    No steps have been taken by Ms Te Whero to show cause, and there was no appearance for her at the call today.

Orders

[6]    I have had regard to the matters included in s 19 of the Administration Act 1969 and I am satisfied under s 19(2) of the Act that it is necessary and expedient to appoint only Martin Michael Proctor and Dalene Anne Proctor as executors and trustees of the deceased’s will.

[7]    I grant the application and make the order that probate of the will of the deceased dated 11 May 2012 is granted to Martin Michael Proctor and Dalene Anne Proctor alone.

O’Gorman J