Estate of Walton [2023] NZHC 656 (29 March 2023)

Last Updated: 4 May 2023

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-627 [2023] NZHC 656

IN THE ESTATE OF

RAEWYN BERENICE WALTON DYLAN JAMES WALTON AND LEAH RAEWYN WALTON Applicants

On the Papers
Judgment:	29 March 2023

JUDGMENT OF ISAC J

Introduction

[1] The applicants seek letters of administration in the estate of the late Raewyn Walton. They also seek the appointment of an independent administrator on the basis that the executor named in Ms Walton’s will has refused or neglected to prove the will.

Background

[2] Ms Raewyn Walton died at Paihia on 6 November 2020. Under her will she appointed her partner, Mr Timothy Bolt, as her executor and left him the entire estate.

[3] The applicants, Ms Leah Walton and Mr Dylan Walton, are Ms Walton’s adult children. By a letter to Mr Bolt of 8 December 2021 from their solicitors, Rice Craig, the applicants made a range of inquiries about Ms Walton’s estate, noting that it appeared no grant of probate had yet been made. Mr Bolt’s solicitors,

ESTATE OF R B WALTON [2023] NZHC 656 [29 March 2023]

McLeods Lawyers, replied on 20 December 2021 with a copy of Ms Walton’s will, and advised that they had instructions “to proceed to obtain probate in the estate”.

[4] It appears Mr Bolt did not then apply for letters of administration. On 29 March 2022, the applicants served a notice advising Mr Bolt that they would apply for administration of the estate. They applied for letters of administration on 1 July 2022.¹ The Court was unable to grant the application, however, because it was not accompanied by Ms Walton’s original will. Leah and Dylan Walton therefore applied for an order, pursuant to s 54 of the Administration Act 1969, and r 27.26(6) of the High Court Rules 2016 (Rules), requiring Mr Bolt or his solicitors to produce the original will. That application was referred to me as Duty Judge.

[5] In a Minute of 28 October 2022, I indicated that the Court may be reluctant to grant administration to Leah and Dylan Walton given Mr Bolt’s higher claim to the administration of the estate,² and that the appointment of an independent professional trustee may be more appropriate.³

[6] Subsequently, in an amended application dated 1 March 2023, the applicants sought orders granting letters of administration to Ms Asta Gold, a barrister and solicitor of Waiuku who has consented to the appointment and confirmed her independence.

[7] The evidence suggests that the original will has not been provided to the applicants solicitors despite repeated requests. Nor has Mr Bolt proved the will or renounced probate in the 26 months since Ms Walton’s death.

1. In addition, on 14 July 2022, Leah and Dylan Walton sent a request to McLeods Lawyers requesting Ms Walton’s original will.
2. Pursuant to s 27.26 of the High Court Rules 2016, Mr Bolt is the ultimate residuary beneficiary of the will which disposes of the whole residue (subs (3)), and therefore has a higher priority than the applicants, who have no interest under the will but as children of the deceased would have been entitled to a grant if she had died wholly intestate (subs (6)).
3. Re Raewyn Berenice Walton (Minute of Isac J) HC Wellington CIV-2022-485-627, 28 October 2022 at [5].

Consideration

[8] Section 6(1) of the Administration Act 1969 provides that, in granting letters of administration, the Court shall have regard to the rights of all persons interested in the estate and, in particular, administration with a will annexed may be granted to a devisee or legatee.

[9] Notwithstanding that some other person is appointed executor of a will, s 6(2) provides the Court with a discretion to grant administration to such person as it thinks expedient where there are special circumstances which it considers make it necessary or expedient to do so.

[10] In Tod v Tod, the Court of Appeal set out five principles in relation to the Court’s discretion to discharge or remove an administrator under s 20 of the Act.⁴ In Harvey v Harvey, van Bohemen J considered that those principles are also generally applicable to an application under s 6 of the Act.⁵ The principles are:

(a) The starting point is the Court’s duty to see estates properly administered.

(b) The jurisdiction involves a large discretion which is heavily fact-dependent.

(c) The wishes of the testator (evidenced by the appointment of a particular executor) are to be given consideration, but ultimately the question is what is expedient in the interests of the beneficiaries.

(d) Expedience is a lower threshold than necessity and imports considerations of suitability, practicality and efficiency.

(e) Hostility as between administrators and beneficiaries is not of itself a reason for removal, but hostility will assume relevance if it risks prejudicing the interests of the beneficiaries.

[11] Under s 27.25(3) of the Rules, the Court may grant letters of administration with the will annexed to the person entitled to them according to the priority in r 27.26 where:⁶

⁴ Tod v Tod [2015] NZCA 501, [2017] 2 NZLR 145 at [22], citing with approval Farquhar v Nunns

[2013] NZHC 1670 at [13].

⁵ Harvey v Harvey [2021] NZHC 1771 at [39].

⁶ High Court Rules 2016, s 27.25(3) and (4); and Administration Act 1969, s 19.

(a) an executor named in a will has neglected or refused to prove the will, or to renounce probate thereof; and

(b) no one entitled to apply for an order nisi under s 19 of the Administration Act 1969 has done so within four months after the will-maker’s death.

[12] More than two years have passed since Ms Walton’s death in November 2020. In December 2021 the applicants indicated that they considered Mr Bolt was required to obtain probate, given the extent of the assets expected to be contained in the estate. A year has elapsed since they served notice of their intention to apply for letters of administration.⁷ Despite all this, Mr Bolt has taken no steps in the matter. Nor has he complied with requests to produce the original will. Given the inaction to date, it seems unlikely that he will do so. This position is unsatisfactory.

Orders

[13] In the circumstances and in light of the principles set down in Tod and Harvey, I consider that the appointment of an independent professional administrator is expedient and necessary to ensure the proper administration of the estate.

[14] Accordingly, I order that Asta Gold, barrister and solicitor, be granted letters of administration with will annexed. I also order that the original will be produced.⁸

Isac J

Solicitors

Rice Craig, Papakura for the Applicants

⁷ By that notice the applicants satisfied the requirement in r 27.27(2)(b).

⁸ Administration Act, s 54.