NEWMAN ESTATE HC HAM CIV 2010-419-000888

NEWMAN ESTATE HC HAM CIV 2010-419-000888

Permission to commence the probate in solemn form proceeding by originating application is refused because the High Court Rules (r27.6(4) and r27.9) require use of the ordinary proceeding procedure with a statement of claim and pleadings; service must be given to the deceased's husband and adult child and counsel/guardian ad litem for the minor, and the applicant must file an affidavit evidencing searches for any prior testamentary dispositions.

Citation
openlaw-ae9a7828_ffa2_473f_b37c_99dcfc3e9775.pdf
Parties
Applicant (mother of Deceased; Seeking Probate): Brenda Leeanne Newman; Deceased: Cheryl Margaret Newman; Interested Party (husband): Kerry John Evans; Interested Party (adult Child): Ashleigh Marie Evans; Interested Party (minor Child): Alexander Ryan Evans
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 July 2010
Procedural Posture
Application for Probate in Solemn Form / Preliminary Application for Directions and Permission to Commence by Originating Application (on the Papers)
Outcome
Application to commence by originating application refused; directions and orders made for filing, service, appointment of guardian ad litem, and affidavit of searches for prior wills.
Legal Topics
Probate in Solemn Form, Service of Process, High Court Rules Compliance, Permission Under R19.5 to Use Originating Application, Wills Act 2007 S 14
Succession/probate Civil Procedure Probate in Solemn Form Service of Process High Court Rules Compliance Permission Under R19.5 to Use Originating Application Wills Act 2007 S 14

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Parties

Brenda Leeanne Newman

Applicant (mother of Deceased; Seeking Probate)

Cheryl Margaret Newman

Deceased

Kerry John Evans

Interested Party (husband)

Ashleigh Marie Evans

Interested Party (adult Child)

Alexander Ryan Evans

Interested Party (minor Child)

Procedural Posture

Application for Probate in Solemn Form / Preliminary Application for Directions and Permission to Commence by Originating Application (on the Papers)

Legal Issues

  1. 1 Whether an application for probate in solemn form may be commenced by originating application under r19.5
  2. 2 What persons must be served in an application for probate in solemn form
  3. 3 Whether a guardian ad litem should be appointed for a minor beneficiary

Ratio Decidendi

Permission to commence the probate in solemn form proceeding by originating application is refused because the High Court Rules (r27.6(4) and r27.9) require use of the ordinary proceeding procedure with a statement of claim and pleadings; service must be given to the deceased's husband and adult child and counsel/guardian ad litem for the minor, and the applicant must file an affidavit evidencing searches for any prior testamentary dispositions.

Court Disposition

Application to commence by originating application refused; directions and orders made for filing, service, appointment of guardian ad litem, and affidavit of searches for prior wills.

Orders

  • Application to commence probate in solemn form by originating application is refused
  • Applicant must file a statement of claim and notice of proceeding in accordance with Part 5