RE THE ESTATE OF SOWRY [2021] NZHC 3355

RE THE ESTATE OF SOWRY [2021] NZHC 3355

Applicant's s9B application made within three months, applicant confirmed willingness and capacity to act, and chain of representation under s13 applied; the court was satisfied that without‑notice relief was appropriate and therefore confirmed the attorney as executor and administrator.

Citation
[2021] NZHC 3355
Parties
Applicant/attorney: Leigh Carol Lawrence; Deceased: Brian Sowry; Named Executor (deceased): Jillian Carol Sowry
Court
High Court
Jurisdiction
New Zealand
Judgment Date
8 December 2021
Procedural Posture
Administration (probate) / Without Notice Application for Confirmation of Executor/administrator
Outcome
Applicant confirmed as executor and administrator of the deceased's estate
Legal Topics
Confirmation of Executor Under Administration Act, Continuation of Attorney as Administrator S9 B, Representation of Original Testator S13, Without Notice Relief R27.4
Probate Estate Administration Enduring Power of Attorney High Court Procedure Confirmation of Executor Under Administration Act Continuation of Attorney as Administrator S9 B Representation of Original Testator S13 Without Notice Relief R27.4

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Parties

Leigh Carol Lawrence

Applicant/attorney

Brian Sowry

Deceased

Jillian Carol Sowry

Named Executor (deceased)

Procedural Posture

Administration (probate) / Without Notice Application for Confirmation of Executor/administrator

Legal Issues

  1. 1 Whether an attorney acting under an enduring power of attorney may continue to act as administrator after the donor's death under s9B of the Administration Act 1969
  2. 2 Whether the executor of a sole or last surviving executor represents the original testator under s13 of the Administration Act 1969
  3. 3 Whether the without‑notice procedure under r27.4 High Court Rules 2016 was appropriate

Ratio Decidendi

Applicant's s9B application made within three months, applicant confirmed willingness and capacity to act, and chain of representation under s13 applied; the court was satisfied that without‑notice relief was appropriate and therefore confirmed the attorney as executor and administrator.

Court Disposition

Applicant confirmed as executor and administrator of the deceased's estate

Orders

  • That Leigh Carol Lawrence of Auckland, Legal Executive, as attorney for the mentally incapable executor named in the Will of the deceased and to whom probate was granted on 6 December 2019 be confirmed as the executor and administrator of the deceased's estate.