High Court Amendment Rules (No 2) 2001

2001/382

High Court Amendment Rules (No 2) 2001


Note

These rules are administered in the Ministry of Justice and the Department for Courts.


Pursuant to section 51C of the Judicature Act 1908, Her Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, and with the concurrence of the Right Honourable the Chief Justice and at least 2 other members of the Rules Committee (of whom at least 1 was a Judge of the High Court), makes the following rules.

1 Title
  • (1) These rules are the High Court Amendment Rules (No 2) 2001.

    (2) In these rules, the High Court Rules from time to time set out in Schedule 2 of the Judicature Act 1908 are called the High Court Rules.

2 Commencement
  • These rules come into force on 1 February 2002.

3 Search of Court records generally
  • Rule 66(5)(c) of the High Court Rules is amended by omitting the expression Matrimonial Property Act 1976, and substituting the expression Property (Relationships) Act 1976.

4 When allowed without leave
  • Rule 219 of the High Court Rules (which relates to service out of New Zealand) is amended by revoking paragraph (k).

5 Application of this Part to proceedings under certain Acts
6 New rule 448D inserted
  • The High Court Rules are amended by inserting, after rule 448C, the following rule:

    448D Application of certain rules in this Part to proceedings under Property (Relationships) Act 1976
    • Rule 454 (which relates to joinder of claims and consolidation) and rule 455 (which relates to evidence) apply to proceedings transferred to the Court by order of a Family Court Judge under section 22(3) of the Property (Relationships) Act 1976, but no other rule in this Part applies to proceedings under that Act.

7 Directions as to service
  • Rule 451(3) of the High Court Rules is amended by omitting the words , the Law Reform (Testamentary Promises) Act 1949, or the Matrimonial Property Act 1963, the information required by subclause (2) shall include , and substituting the words or the Law Reform (Testamentary Promises) Act 1949, the information required by subclause (2) includes.

8 Joinder of claims and consolidation
  • Rule 454 of the High Court Rules is amended by revoking subclauses (2) and (3), and substituting the following subclause:

    • (2) Separate proceedings against the estate of the same deceased person may be consolidated under rules 382 and 383 if they are—

      • (a) proceedings under the Family Protection Act 1955; or

      • (b) proceedings under the Law Reform (Testamentary Promises) Act 1949; or

      • (c) proceedings under the Property (Relationships) Act 1976, transferred to the Court by order of a Family Court Judge under section 22(3) of that Act.

9 New rule 456 substituted
  • The High Court Rules are amended by revoking rule 456, and substituting the following rule:

    456 Time for serving claimant's affidavit in proceedings under Family Protection Act 1955
    • A claimant against the estate of a deceased person under the Family Protection Act 1955 must, at the time of serving his or her statement of claim, serve his or her own affidavit in support of his or her statement of claim.

10 Application of this Part
  • Rule 458D(1)(a) of the principal rules is amended by revoking subparagraph (xv).

11 Justification of entitlement to grant of letters of administration with will annexed
  • Rule 656(1) of the High Court Rules is amended—

    • (a) by inserting, after the word competent, the words and not disqualified; and

    • (b) by inserting, after the word incompetent, the words or disqualified.

12 Order of priority for grant in case of intestacy
  • Rule 665(3) of the High Court Rules is amended by revoking paragraph (a), and substituting the following paragraphs:

    • (a) the surviving spouse or the surviving de facto partner entitled to succeed on the intestacy, if paragraph (aa) does not apply and his or her beneficial interest in the estate is not affected,—

      • (i) in the case only of a surviving spouse, by section 12(2) of the Matrimonial Proceedings Act 1963 (as applied by section 191(3) of the Family Proceedings Act 1980) or by section 26(1) of the Family Proceedings Act 1980; or

      • (ii) in every case, by the choice he or she has made between option A and option B, under section 61 of the Property (Relationships) Act 1976, because he or she has chosen option B:

    • (aa) in a case of the kind referred to in section 77C of the Administration Act 1969 (succession on intestacy if intestate dies leaving spouse and 1 or more de facto partners, or 2 or more de facto partners), any surviving spouse or surviving de facto partner entitled to succeed on the intestacy, if his or her beneficial interest in the estate is not affected in any of the ways stated in paragraph (a)(i) and (ii):.

13 Schedule 1 amended
  • Form 52

    (1) Schedule 1 of the High Court Rules is amended by revoking paragraph 9 of form 52 (affidavit to lead grant of administration with will annexed), and substituting the following paragraph:

    9
    • [If the deponent is the surviving spouse or a surviving de facto partner of the deceased or a former spouse or a former de facto partner of the deceased] I am the surviving spouse (or a surviving de facto partner or a former spouse or a former de facto partner) of the deceased and am not disqualified from applying for letters of administration with the will (*and codicil) annexed by reason of having ceased to be a beneficiary under the will (*and codicil) (for example, I have not ceased to be a beneficiary under the will (*and codicil)

      • (a) by virtue of the operation of section 2 of the Wills Amendment Act 1977 (which relates to the effect of divorce, etc, on wills); or

      • (b) by the choice I have made between option A and option B, under section 61 of the Property (Relationships) Act 1976, because I have chosen option B and lodged a notice of choice of option in accordance with section 65(2)(c) of that Act, a copy of which is annexed and marked    ).

    Form 53

    (2) Schedule 1 of the High Court Rules is amended by omitting from the heading to form 53 (affidavit to lead grant of administration on intestacy to widow or widower) the words Widow or Widower, and substituting the words surviving spouse or de facto partner.

    (3) Schedule 1 of the High Court Rules is amended by revoking paragraph 7 of form 53, and substituting the following paragraph:

    7
    • I am the surviving spouse (or the surviving de facto partner) of the above-named deceased. I am entitled to succeed on the intestacy. My beneficial interest in the estate is not affected—

      • (a) [in the case only of a surviving spouse] by section 12(2) of the Matrimonial Proceedings Act 1963 (as applied by section 191(3) of the Family Proceedings Act 1980) or by section 26(1) of the Family Proceedings Act 1980; or

      • (b) [in every case] by the choice I have made between option A and option B, under section 61 of the Property (Relationships) Act 1976, because I have chosen option B and lodged a notice of choice of option in accordance with section 65(2)(c) of that Act, a copy of which is annexed and marked    .

    (4) Schedule 1 of the High Court Rules is amended by inserting, after paragraph 7 of form 53, the following word and paragraphs:

    7A
    • The above-named deceased was not survived by a de facto partner entitled to succeed on the intestacy (or, if the affidavit is one by a surviving de facto partner, The above-named deceased was not survived by a husband or wife, or by another de facto partner, entitled to succeed on the intestacy).

      or

      [In a case of the kind referred to in section 77C of the Administration Act 1969, insert the alternative paragraph 7A and, if applicable, the paragraph 7B, 7C, or 7D at the end of this form.]''.

    (5) Schedule 1 of the High Court Rules is amended by adding to the footnotes to paragraphs 8 and 8B of form 53 the words or female de facto partner.

    (6) Schedule 1 of the High Court Rules is amended by adding to form 53 the following heading and paragraphs:

    Paragraphs for cases of the kind referred to in section 77C of the Administration Act 1969

    7A
    • [In a case of the kind referred to in section 77C of the Administration Act 1969, that is, if the deceased has left a spouse and 1 or more de facto partners, or 2 or more de facto partners, entitled to succeed on the intestacy.] The above-named deceased was also survived by a husband or wife, or by a de facto partner, or by 1 or more other de facto partners, entitled to succeed on the intestacy, namely [full name], of [address], and [full name], of [address], etc.

    7B
    • [Include this paragraph, where it is applicable, in a case of the kind referred to in section 77C of the Administration Act 1969.] On [date], I gave written notice to [full names], the survivors of the above-named deceased who are named in paragraph 7A of this affidavit, that I intended to apply to this Court for letters of administration of the estate of the above-named deceased.

    7C
    • [Include this paragraph, where it is applicable, in a case of the kind referred to in section 77C of the Administration Act 1969.] Of the survivors of the above-named deceased who are named in paragraph 7A of this affidavit, [number], namely, [full name] who resides in [country], and [full name] who resides in [country], etc, reside beyond the jurisdiction of the Court.

    7D
    • [Include this paragraph, where it is applicable, in a case of the kind referred to in section 77C of the Administration Act 1969.] The consents of [full names], survivors of the above-named deceased who are named in paragraph 7A of this affidavit, to the grant to me of letters of administration of the estate of the above-named deceased are annexed to this affidavit and marked    .

    Form 54

    (7) Schedule 1 of the High Court Rules is amended by revoking the paragraph 8 of form 54 (affidavit to lead grant of administration on intestacy to daughter or son of deceased) that appears immediately after paragraph 6, and substituting the following paragraph:

    • 7 I. am a daughter (or son) of the above-named deceased.

    (8) Schedule 1 of the High Court Rules is amended—

    • (a) by adding to the first alternative version of paragraph 8 of form 54 the words , and was not living in a de facto relationship; and

    • (b) by adding to the second and third alternative versions of paragraph 8 of form 54 the words , and, at the time of his (or her) death, he (or she) was not living in a de facto relationship.

    (9) Schedule 1 of the High Court Rules is amended by inserting in form 54, immediately before paragraph 9, the following word and fourth alternative version of paragraph 8:

    or

    8
    • The above-named deceased was survived by a spouse or de facto partner who was entitled to succeed on the intestacy, but his or her beneficial interest in the estate was affected by the choice he or she made between option A and option B, under section 61 of the Property (Relationships) Act 1976, because he or she chose option A.

    Form 55

    (10) Schedule 1 of the High Court Rules is amended—

    • (a) by omitting from the first alternative version of paragraph 8 of form 55 (affidavit to lead grant of administration on intestacy to parent of deceased) the words a lawful wife (or husband), and substituting the words a spouse, or by any de facto partners, entitled to succeed on the intestacy; and

    • (b) by adding to the second and third alternative versions of paragraph 8 of form 55 the words , and, at the time of his (or her) death, he (or she) was not living in a de facto relationship.

    (11) Schedule 1 of the High Court Rules is amended by inserting in form 55, immediately before paragraph 9, the following word and fourth alternative version of paragraph 8:

    or

    8
    • The above-named deceased was survived by a spouse or de facto partner who was entitled to succeed on the intestacy, but his or her beneficial interest in the estate was affected by the choice he or she made between option A and option B, under section 61 of the Property (Relationships) Act 1976, because he or she chose option A.

    Form 56

    (12) Schedule 1 of the High Court Rules is amended—

    • (a) by omitting from the first alternative version of paragraph 8 of form 56 (affidavit to lead grant of administration on intestacy to brother or sister of deceased) the words a lawful wife or husband, and substituting the words a spouse, or by any de facto partners, entitled to succeed on the intestacy; and

    • (b) by adding to the second and third alternative versions of paragraph 8 of form 56 the words , and, at the time of his (or her) death, he (or she) was not living in a de facto relationship.

    (13) Schedule 1 of the High Court Rules is amended by inserting in form 56, immediately before paragraph 9, the following word and fourth alternative version of paragraph 8:

    or

    8
    • The above-named deceased was survived by a spouse or de facto partner who was entitled to succeed on the intestacy, but his or her beneficial interest in the estate was affected by the choice he or she made between option A and option B, under section 61 of the Property (Relationships) Act 1976, because he or she chose option A.

    Forms 58 to 60

    (14) Schedule 1 of the High Court Rules is amended by inserting, after the word widower in each place where it appears in form 58 (letters of administration with will annexed), and form 59 (letters of administration on intestacy), the words or surviving de facto partner.

    (15) Schedule 1 of the High Court Rules is amended by inserting in form 60 (caveat), after the word widower, the words or a surviving de facto partner.

Marie Shroff,

Clerk of the Executive Council.

Explanatory note

This note is not part of the rules, but is intended to indicate their general effect.

These rules, which come into force on 1 February 2002, amend the High Court Rules (the principal rules). The rule changes arise mainly from the enactment of the Property (Relationships) Amendment Act 2001, most of which comes into force on that date. Under that Amendment Act, the Matrimonial Property Act 1976 is renamed the Property (Relationships) Act 1976, and replaces completely the Matrimonial Property Act 1963 (the 1963 Act). Other changes arise from the amendments to the Administration Act 1969 that are made by the Administration Amendment Act 2001 and are also to come into force on that date.

Rule 3 amends rule 66(5)(c) of the principal rules, which relates to searching of Court records generally, to reflect the renaming of the Matrimonial Property Act 1976.

Rule 4 amends rule 219 of the principal rules, which permits certain statements of claim and notices that cannot be served in New Zealand to be served overseas without leave of the Court. Rule 219(k) is revoked because the service out of New Zealand of proceedings under the Property (Relationships) Act 1976 is to be dealt with under rule 242 of the District Courts Rules 1992.

Rule 5 amends rule 448 of the principal rules, which states some proceedings to which Part 4 of the principal rules (procedure in special cases) applies. The amendments ensure that Part 4 of the principal rules does not apply to proceedings under the Property (Relationships) Act 1976, except as provided by new rule 448D of the principal rules (inserted by rule 6).

Rule 6 inserts new rule 448D into the principal rules. The rule ensures that rules 454 and 455 (and no other rules in Part 4) apply to proceedings under the Property (Relationships) Act 1976. Rule 454 (amended by rule 8) relates to joinder of claims and consolidation. Rule 455 requires evidence to be given by means of an agreed statement of facts under rule 502, or by affidavit under rules 507 to 519.

Rule 7 amends rule 451 of the principal rules, which relates to applications for directions for service and orders for representation. The amendment ensures that rule 451 no longer refers to proceedings under the 1963 Act.

Rule 8 revokes subclauses (2) and (3) of rule 454 of the principal rules, which relate to joinder of claims and consolidation of proceedings. Subclause (2) is revoked because joinder of claims against the estate of a deceased person under the Property (Relationships) Act 1976 to proceedings under the Family Protection Act 1955 or Law Reform (Testamentary Promises) Act 1949 will take place where proceedings under the Property (Relationships) Act 1976 are commenced: in Family Courts. New subclause (2) has the same effect as revoked subclause (3). New subclause (2) makes it clear that separate proceedings against the estate of the same deceased person may be consolidated, under rules 382 and 383, if they are proceedings under the Family Protection Act 1955, proceedings under the Law Reform (Testamentary Promises) Act 1949, or proceedings under the Property (Relationships) Act 1976 transferred by order of a Family Court Judge because of the complexity of the proceedings or a question arising in them.

Rule 9 relates to rule 456 of the principal rules, which requires claimants under the Family Protection Act 1955 or the 1963 Act to serve their own affidavits in support at the same time as they serve their statements of claim. Rule 9 substitutes a new rule 456. New rule 456 re-enacts rule 456, but for claimants under the Family Protection Act 1955 only.

Rule 10 revokes rule 458D(1)(a)(xv) of the principal rules. That subparagraph, read together with rule 458E of the principal rules, permits applications under section 22(3) of the Matrimonial Property Act 1976 (for the transfer to the High Court of proceedings under that Act pending in a Family Court) to be made by way of an originating application. The subparagraph is revoked because similar applications for transfer, under section 22(3) of the Property (Relationships) Act 1976, are now determined by Family Courts.

Rule 11 amends rule 656 of the principal rules, which relates to justification of an applicant's entitlement to a grant of letters of administration with will annexed. The amendment relates to proof that other applicants for a grant of that kind are disqualified.

Rule 12 amends rule 665 of the principal rules. Rule 665 determines who may apply for letters of administration of the estate of a person who has died wholly intestate, unless section 6 of the Administration Act 1969 requires otherwise. Rule 665(2) states an order of priority for the purpose. First in the order are persons having a beneficial interest in the estate, in the order of priority set out in rule 665(3). Under rule 665(3)(a), the first of those persons is the surviving spouse, if he or she is not disqualified, for example by a separation order in force at the time that the deceased died. Rule 12 revokes rule 665(3)(a), and substitutes new rule 665(3)(a) and (aa). New rule 665(3)(a) and (aa) re-enact rule 665(3)(a), but also amend it to reflect the potential inclusion, among the persons having a beneficial interest in the estate of a person who dies intestate on or after 1 February 2002, of surviving de facto partners of the deceased.

Rule 13 amends various forms in Schedule 1 of the principal rules. The forms relate mainly to the grant of administration on an intestacy. The amendments add references to de facto relationships and surviving de facto partners.


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 13 December 2001.