Re Clamp (deceased) [2014] NZHC 540

Re Clamp (deceased) [2014] NZHC 540

The phrase 'shall fail to make application for probate' can be satisfied without formal renunciation; where the instituted executrix has not applied within the relevant circumstances and is incapacitated such that a manager would have to act, the substituted executor's appointment takes effect and he is entitled to apply for probate; the registrar's refusal to allow the substituted executor to apply was set aside.

Citation
[2014] NZHC 540
Parties
Deceased: Donald Wilfred Clamp; Instituted Executrix: Mary Shannon Fyfe Clamp; Substituted Executor / Applicant: Robert Anthony Armstrong
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 March 2014
Procedural Posture
Probate / Review of Registrar Decision Under High Court Rules Rr 2.11 and 27.14
Outcome
Registrar's decision set aside; substituted executor entitled to apply for probate
Legal Topics
Substituted Executor, Failure to Apply for Probate, Construction of Will, Manager Under Protection of Personal and Property Rights Act 1988, Registrar Practice
Wills and Probate Succession Capacity and Guardianship Civil Procedure Substituted Executor Failure to Apply for Probate Construction of Will Manager Under Protection of Personal and Property Rights Act 1988 +1 more

Case Brief

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Parties

Donald Wilfred Clamp

Deceased

Mary Shannon Fyfe Clamp

Instituted Executrix

Robert Anthony Armstrong

Substituted Executor / Applicant

Procedural Posture

Probate / Review of Registrar Decision Under High Court Rules Rr 2.11 and 27.14

Legal Issues

  1. 1 Whether a substituted executor may apply for probate where the instituted executor survived the survivorship period but has not applied and is incapacitated
  2. 2 Whether 'shall fail to make application for probate' requires formal renunciation or other definitive act by the instituted executor
  3. 3 Whether a property manager must or may apply for probate on behalf of an incapacitated instituted executor

Ratio Decidendi

The phrase 'shall fail to make application for probate' can be satisfied without formal renunciation; where the instituted executrix has not applied within the relevant circumstances and is incapacitated such that a manager would have to act, the substituted executor's appointment takes effect and he is entitled to apply for probate; the registrar's refusal to allow the substituted executor to apply was set aside.

Court Disposition

Registrar's decision set aside; substituted executor entitled to apply for probate

Orders

  • Set aside the registrar's refusal to grant probate to the substituted executor
  • Direct that the substituted executor's application be considered by the registrar in accordance with this decision