Estate of Clement [2025] NZHC 1796 (2 July 2025)

Estate of Clement [2025] NZHC 1796 (2 July 2025) Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions You are here: NZLII >> Databases >> High Court of New Zealand Decisions >> 2025 >> [2025] NZHC 1796 Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help Estate of Clement [2025] NZHC 1796 (2 July 2025) Last Updated: 15 July 2025 IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE CIV-2025-454-61[2025] NZHC 1796 IN THE MATTER of Section 14 of the Wills Act 2007 and IN THE MATTER of the estate of JASON SCOTT CLEMENT Deceased and IN THE MATTER of an application by KYLE CAMPBELL DAVIE Applicant On the papers Counsel: N A A Platje for Applicant Judgment: 2 July 2025 JUDGMENT OF GWYN J [Directions as to service; order nisi] Background [1] The applicant, Kyle Campbell Davie, is the named executor of the Estate of Jason Scott Clement (the Estate). Mr Clement (the deceased) died on 15 May 2025. He left a will dated 30 April 2025 (the will) which divided his assets between his two children and appoints the applicant as executor. [2] The applicant has filed an application to validate the will under s 14 of the Wills Act 2007. The application says the will is non-compliant with s 11(4) of the Wills Act, but otherwise reflects the deceased’s testamentary intentions. RE THE ESTATE OF CLEMENT [2025] NZHC 1796 [2 JULY 2025] [3] Kimberley Montaperto has lodged a caveat against probate, pursuant to s 60 of the Administration Act 1969. Ms Montaperto is the deceased’s former de facto partner. [4] The applicant has filed a without notice application under s 61 of the Administration Act for an order nisi to be made, to provide that, upon validation of the will: (a) the caveat lodged by Ms Montaperto shall be discharged; and (b) the applicant be appointed executor of the Estate. [5] In counsel’s memorandum filed in support of the application, Mr Platje records that the applicant is aware that Ms Montaperto objects to this application and has not provided her consent to the application to validate the will being made without notice and should therefore be provided with an opportunity to respond and set out her grounds of objection. [6] Accordingly, the applicant seeks directions as to service and an order nisi under s 61 of the Administration Act. Directions as to service [7] The applicant seeks a direction that the documents set out in the application, which include the application for an order declaring the will valid under s 14 of the Wills Act and the application for an order nisi, together with all supporting documents, be served on the following persons who may have an interest in the proceedings: (a) Kimberley Montaperto; (b) Colin Clement, the deceased’s father; (c) Leon Clement, the deceased’s brother; (d) Sarah Dempsey, the deceased’s sister; and (e) Ryan Clement, the deceased’s brother. [8] I make directions as to service in the terms set out in the draft order filed with this application. A copy of this judgment should also be served on the parties listed above. Order nisi [9] The applicant seeks an order nisi pursuant to s 61 of the Administration Act which would cause the caveator, Ms Monteperto, to put her concerns before the Court (a caveator under s 60 of the Administration Act is not required to provide grounds at the time of lodging the caveat). [10] Section 61 of the Administration Act relevantly provides: 61 Where a caveat lodged, court may grant order nisi In every case where a caveat has been lodged and has neither lapsed nor been withdrawn, the following provisions shall apply: (a) the court may, upon application on behalf of the person applying for administration, supported by affidavits upon which, if there had been no caveat, administration would have been granted, may make one or other of the following orders: ... (ii) in any other case, an order nisi for the grant of administration to the person applying, which order nisi shall name a time and place for showing cause against the same, and the court may enlarge any such order from time to time: ... [11] I have read the applicant’s affirmation (dated 18 June 2025), the affidavit of Susan Patricia Scott (sworn on 18 June 2025) and the memorandum of counsel filed in support of this application. Both the applicant and Ms Scott depose to the circumstances in which the deceased made the will. [12] As the applicant has also applied to validate the will under s 14 of the Wills Act and for an order that probate be granted on validation of the will, I am satisfied that application will provide an opportunity for Ms Monteperto to present any objection to the validation of the will and the applicant’s appointment as executor. [13] An order nisi will be granted in the terms set out in the applicant’s draft order filed with the application. [14] As the hearing of the order nisi will follow from the s 14 application, it is appropriate that the s 14 application and the order nisi be set down to be heard together. Those applications should proceed to a hearing as soon as possible. [15] I direct that the order nisi, together with the applicant’s application under s 14 of the Wills Act (if opposed), be set down for a half day hearing. The Registrar is to confer with counsel for the applicant as to a convenient date. A timetable will then be set in place for the filing of affidavits and submissions. Orders [16] In summary, I make the following orders: (a) Directions as to service as set out in the applicant’s draft order. A copy of this judgment is also to be served on the listed parties. (b) An order nisi for discharge of caveat and administration of estate as set out in the applicant’s draft order. Gwyn J Solicitors: Cullinane Steele Limited, Wellington for Applicant NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.nzlii.org/nz/cases/NZHC/2025/1796.html