Hughes v Dawson [2024] NZHC 2984 (14 October 2024)

Last Updated: 1 November 2024

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2024-470-50 [2024] NZHC 2984

IN THE ESTATE OF	JEAN HAYDON BROWN formerly of Katikati in New Zealand, latterly of Tauranga, Retired, Deceased.
BETWEEN	JAMES HAYDON HUGHES Plaintiff
AND	GLADYS ANNE DAWSON Defendant

Hearing:	On the papers
Counsel:	C J R Baird for Plaintiff
Judgment:	14 October 2024

JUDGMENT OF MOORE J

(Plaintiff seeking probate by consent)

This judgment was delivered by me on 14 October 2024 at 3.00 pm pursuant to the High Court Rules 11.5 of the High Court Rules.

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

Registrar/Deputy Registrar

Solicitors:

Davenports Law, Auckland

HUGHES v DAWSON [2024] NZHC 2984 [14 October 2024]

• [1] By statement of claim dated 9 April 2024, the plaintiff, James Haydon Hughes (Mr Hughes), seeks an order granting probate in solemn form appointing him as sole executor of the estate of Jean Haydon Brown (the deceased).

• [2] The deceased died at Tauranga on or about 20 October 2020. Mr Hughes is one of the deceased’s children.

• [3] The deceased died testate, leaving a last Will dated 22 December 2016. The Will appointed two joint executors, one of whom is Mr Hughes. The other executor was Lorraine Jean Francis. Ms Francis lives in Queensland. She renounced her executorship by deed dated 17 February 2021.

• [4] The will names the following as beneficiaries:

(a) Mr Hughes, the plaintiff;

(b) Gladys Anne Dawson, the defendant;

(c) Lorraine Jean Francis (referred to above);

(d) Rhonda Hughes of Katikati;

(e) Keitha Hughes of Ohope;

(f) Sheryl Kitchen of Whangarei; and

(g) The grandchildren of the deceased, through the deceased’s daughter, Delwyn, being the following two adults:

(i) Benjamin Thomas Woodward (Benjamin) of Christchurch; and

(ii) Hannah Rachel Stegehuis (Hannah) of Christchurch.

• [5] The depositive part of the Will divides the residue of the estate into seven equal parts. These are made up as follows: one for each of the six beneficiaries listed above

and one part to be shared equally by the beneficiary grandchildren, being Benjamin and Hannah.

• [6] Apart from being one of the beneficiaries, the defendant is a daughter of the deceased. She is named because she lodged a caveat against probate, dated 27 October 2020. This step was taken due to the defendant’s concern at the time relating to the deceased’s mental capacity when making her last Will. The plaintiff subsequently arranged copies of the deceased’s medical notes to be provided to the defendant and, as a consequence, it appears that she is now satisfied of her mother’s testamentary capacity. The caveat expired on or about 26 October 2021. It has not been re-lodged.

• [7] Benjamin and Hannah have orally confirmed that they consent to Mr Hughes being appointed sole executor. The remaining beneficiaries, despite requests, have not consented to the appointment of a previously proposed independent sole executor, Nola McGowan. Ms McGowan is an Auckland solicitor. As a result, the administration of the estate has been frustrated.

• [8] The plaintiff remains ready, willing and able to perform his duties as a sole executor. No objection has been received as to his capacity or character to do so. He has undertaken to faithfully execute the Will and has offered, if the Court requires, to file and verify by affidavit in this Court:

(a) an accurate inventory of the deceased’s estate; and

(b) an account of the deceased’s estate, that is:

(i) accurate;

(ii) states the dates and details of all receipts of disbursements; and

(iii) states which of the receipts of disbursements were on capital account and which were on revenue account.

• [9] The corpus of the estate is comprised of property at 85 Nelson Street, Opotiki. Its value, as estimated on a property value website, is approximately $535,000.
• [10] I am satisfied that all the parties have been served and are aware of this application.

• [11] No good purpose would be served by prolonging the administration of this relatively modest estate. Delay will simply add more costs to the detriment of all beneficiaries. No opposition, formal or otherwise, has been made to the proposal that Mr Hughes be appointed sole executor. Furthermore, there is no apparent impediment to the Court making the other orders as sought.

• [12] Accordingly, I make orders in terms of the prayer for relief contained in the statement of claim, namely:

(a) A declaration that the original last Will, dated 22 December 2016, is valid and expresses the deceased’s testamentary intentions.

(b) An order granting probate in solemn form of the last Will, dated 22 December 2016.

(c) Probate of the last Will, dated 22 December 2016, appointing the plaintiff as sole administrator and executor of the estate of Jean Haydon Brown.

(d) An order that the defendant pay the costs of this proceeding up to the date that the caveat lapsed, that is, on or about 26 October 2021.

• [13] I also make orders in terms of paragraph 20 of the statement of claim (as set out at [8] of this judgment.

• [14] Finally, I invite the parties to consult with a view to agreeing on costs and, in particular, quantum. If costs can be agreed, the parties are to file a joint memorandum

setting out what orders are sought. In the event the parties are unable to agree, they are to file memoranda as to costs within 15 working days of the date of this judgment. No memorandum is to exceed three pages.

Moore J