Estate of Clamp [2014] NZHC 540; [2014] 2 NZLR 707 (21 March 2014)

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-242 [2014] NZHC 540

In the Estate of DONALD WILFRED CLAMP (DECEASED)

Hearing:	On the papers
Appearances:	F V T Ah Mu
Judgment:	21 March 2014

_{JUDGMENT OF MACKENZIE J}

_{I direct that the delivery time of this judgment is}

4 pm on the 21^st day of March 2014.

_{Solicitors: Strachan O’Connor, Johnsonville.}

Re Clamp (deceased) [2014] NZHC 540 [21 March 2014]

[1] This is an application for review of the decision of a registrar. It raises an important point of probate practice on which there is surprisingly little authority.

[2] The deceased, Mr Clamp, died on 30 December 2010. He left a will dated

5 June 1981. Clause 3 of the will provides:

3. I APPOINT my wife MARY SHANNON FYFE CLAMP to be the Executrix and Trustee of this my Will if she shall survive me by the space of thirty (30) days but if she shall not do so or shall do so but shall fail to make application for or to obtain Probate of this my Will THEN I APPOINT

ROBERT ANTHONY ARMSTRONG Executor and Trustee of this my Will ...

of Wellington, Solicitor to be the

[3] The widow of the deceased, Mrs Clamp, who is named as the instituted executrix, did not apply for probate of the will. She has ceased to be capable of managing her own affairs, and her personal affairs are administered by a manager appointed by an order of the Family Court at Wellington made on 24 0ctober 2013

_{under s 31 of the Protection of Personal and Property Rights Act 1988 (the Act).}

[4] The substituted executor, Mr Armstrong, applied for probate. The registrar has refused a grant of probate for the following reasons:

The grounds on which the order is sought are not correct. The applicant is not executor according to the tenor of the will. He is named a substituted executor but cannot apply as the condition that his appointment is subject has not arisen.

An application should be made on behalf of the instituted executor by her property manager. The order appointing the property manager would need to include explicit power to apply for a grant (referred to in Re Dennis Page 90; [1993] 3 NZLR 86).

[5] The applicant has applied for a review of that decision by a judge under rr 2.11 and 27.14 of the High Court Rules.

[6] The essential question is whether the condition for substitution has been met. If it has, then Mr Armstrong, as substituted executor, is entitled to a grant of probate.

[7] The first named executor, Mrs Clamp, has survived for the requisite period, but has not made an application for probate. It is not clear on the evidence before me whether she was, at any time after the expiry of the 30-day survivorship period,

capable of making an application. The fact is that, whatever the reason, she has not. She has however not taken any formal steps to renounce probate. Because there is no prescribed time within which an application for probate must be made, the possibility that she may make an application cannot be excluded. Can she be said to have failed to make an application?

[8] The appointment clause in this will is widely used. It might be expected that the circumstances in which the substituted executor becomes entitled to apply would be settled. That is not so. My research has not uncovered any authority which bears directly on the question of when, or if, an instituted executor can be said to have “failed” to apply for probate, when that executor is still alive, and has not formally renounced probate.

[9] Tristam and Coote’s Probate Practice describes the position in this way:¹

A person may appoint an executor to act alone, or in conjunction with others, or several may be appointed successively. Thus A may be appointed, but if he is unwilling or unable to act (or failing him), B, but if he is unwilling or unable to act (or failing him), C. In such a case A is said to be the instituted executor, and the substituted executor cannot obtain probate until the right of the first named to do so has been superseded, eg he has renounced or he is dead. If an instituted executor once accepts the office and afterwards dies, the substitutes are prima facie, all excluded, because the condition of law (if he is unwilling or unable to act) was extinguished by the acceptance of the instituted executor.

[10] That statement suggests that some definitive action which brings to an end the right of the instituted executor to apply for probate is required. No authority is cited for that proposition, but the view of the authors of that leading text must carry significant weight.

[11] Williams, Mortimer and Sunnucks, on Executors, Administrators and Probate

describes the position as follows:²

A testator may appoint several persons as executors in several degrees. For example, he may provide for his wife (A) to be executrix, but if she will not or cannot be executrix, for the son (B) to be executor, and if the son will not

1. J I Winegarten, R R D’Costa and T Synak Tristram and Coote’s Probate Practice (30th ed, LexisNexis Butterworths, Wellington, 2006) at 4.16. (emphasis added)

² J R Martyn and N Caddick Williams, Mortimer and Sunnucks, on Executors, Administrators and

Probate (20th ed Sweet & Maxwell, London, 2013) at 8-17.

or cannot be executor, then the brother (C), and so on. In such a case the wife is said to be instituted executor in the first degree. B is said to be substituted in the second degree, C to be substituted in the third degree, and so on. The substituted executor cannot propound the will until the claims of the person first named executor have been considered. Thus, the first-named executor must be cited to accept or refuse, or may be shown to have died in the testator’s lifetime, or power may be reserved to him to prove the will on his return from abroad, but only if this appears to be the intention of the will.

[12] That also suggests that either some definitive step must have been taken by the instituted executor to renounce, or steps must be taken formally to address the position of that executor.

[13] Such authority as my research has disclosed suggests that the position is not necessarily as strict as those two formulations of the relevant principles indicate. In Re Lane, the testator had appointed his son as the sole executor, with a substituted

_{executor in the event of the son going abroad or remaining abroad for upwards of}

_{two calendar months.}³

_{The son went abroad some ten months after the testator’s}

death, without having applied for probate. He remained overseas at the time of the application for probate. The Court granted probate to the substituted executor, but

_{reserved power to the son to prove the will.}

[14] In Re Langford, the testator had appointed his son-in-law to be his executor

_{and “in the case of his absence on foreign duty” appointed his wife as substituted}

_executor.⁴

_{When the testator died the instituted executor was on duty in England but}

shortly afterwards went overseas on foreign service. There is no indication in the report that the instituted executor had taken steps to renounce. Probate was granted

_{to the widow as substituted executor.}

[15] In Re Betts, the testatrix had appointed a friend as executor, but “should he

_{decline or consider himself incapable of acting” appointed the friend’s son as}

_executor.⁵

_{The instituted executor predeceased the testatrix. The Court did not}

accept a submission that the death of the instituted executor should be construed as declining to act. It determined that the question turned solely on interpreting the

_{language in the will and noted that there was an absence of authority on the matter.}

³ _{Re Lane (1864) 33 LJPM & A 185.}

⁴ _{Re Langford (1867) LR 1 P&D 458.}

⁵ Re Betts (1861) 30 LJPM & A 167.

The Judge said that on a literal interpretation, the substitution clause would not be effective. In the course of his discussion, the Judge raised a hypothetical situation under which the named executor might have survived the testatrix but “become imbecile” so that he could neither decline nor consider himself incapable of acting. The Judge expressed the view that in that case “there can be no doubt that the deceased would have wished [the son] to be her executor”.

_{[16] A different view of the effect of the instituted executor predeceasing the}

_{testator was taken in Re Wilmot.}⁶

_{The testatrix appointed her nephew as executor but}

if he was overseas at the time of her death or “from any other cause incapable of acting as such executor” she appointed a substituted executor. The instituted executor predeceased the testatrix and the substituted executor applied for probate. A submission that the instituted executor had become incapable of acting as executor on account of his death was accepted and probate granted to the substituted executor.

_{However, no detailed reasons for that conclusion are reported.}

[17] In Re Jensen (deceased), the testator had appointed his wife and son E to be

_{the executrix and executor, with the proviso that on the death of his wife he}

_{appointed his son L to act as trustee and executor with E.}⁷

_{His wife died before}

application was made for probate. Probate was granted to the two named sons. The Court held that on a true construction of the will the testator intended that his wife should take probate for her life only, and that in the event of his wife dying before

_{any grant of probate was made, both sons should be appointed executors.}

[18] That rather meagre authority leads me to the conclusion that on its correct interpretation, the phrase “shall fail to make application for ... probate” is capable of being satisfied in circumstances where there has been no renunciation of probate, and no other overt act indicating a refusal to apply for probate by the instituted executor. Whether that is so or not must turn on the construction of that phrase in the

_{context of the will as a whole.}

⁶ _{Re Wilmot (1852) 2 Rob Eccl 579.}

⁷ In Re Jensen (Deceased) [1957] NZLR 94 (SC).

[19] The fundamental rule in construing the language of a will is to give the words used the meaning which, having regard to the terms of the will, the testator

_intended.⁸ _{The first duty of the Court when construing a will is to ascertain what is}

_{the meaning of the words used.}⁹

_{On the plain words of cl 3, the will-maker in this}

case intended that the substituted executor should be appointed if the instituted executor failed to apply for probate. The plain words do not require an interpretation which imposes an additional requirement, namely that the instituted executor should

_{renounce the appointment.}

[20] The relevant consideration is what the will-maker would have intended in the circumstances which have arisen. The choice is between a grant of probate to the manager of the presently incapacitated instituted executor, who had not prior to her incapacity taken steps to apply, and a grant to the substituted executor. The will- maker has said that the substituted executor should be appointed if the instituted executrix fails to apply. I consider that the will-maker must be taken to have intended that in these circumstances the instituted executrix has failed to apply, so that the substituted executor should be able to apply, to the exclusion of the right of

_{the manager of the instituted executrix.}

[21] In the present case, the instituted executrix is unable to manage her affairs, and a manager has been appointed. Any application for a grant of probate to her would now have to be made by the manager. The registrar, in refusing a grant to the substituted executor, said that an application should be made on behalf of the instituted executor by the manager. It would be possible for such an application to be made. In Re Dennis, Greig J approved the then current practice of the registrar, in the case of incapacity of the person entitled to a grant of letters or administration, to require that the application be made by a person who has obtained appointment as

manager or welfare guardian under the Act.¹⁰

[22] The question in this case, however, is not whether such an application could be made, but rather whether it must be made. I consider that the terms of this will do

_{not require that.}

⁸ _{Perrin v Morgan [1943] AC 399, at 406.}

⁹ _{Re Beckbessinger [1993] 2 NZLR 362 (HC), at 367.}

¹⁰ Re Dennis [1993] 3 NZLR 86 (HC).

[23] This Court, in the exercise of its probate jurisdiction, may properly adopt a practice which will ensure that any uncertainty as to the ability to apply for probate is avoided, and that a grant of probate cannot be the subject of challenge by another potential applicant for probate. However, such a practice may not impose a requirement which is not in accordance with the proper interpretation of the will.

[24] I therefore find that the pre-condition to the appointment of the substituted executor, namely that the instituted executrix has failed to apply, has been satisfied. The appointment of Mr Armstrong as executor under cl 3 has accordingly become effective.

[25] The grant to the substituted executor need not reserve power to the instituted executrix to prove the will. Her ability to do so is constrained by her incapacity to such an extent as to render that unnecessary.

[26] I set aside the registrar’s decision. I direct that the application by the substituted executor is to be considered by the registrar, in accordance with this

_decision.

A D MacKenzie J