Alexander

[2019] NZHC 790

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2018-485-925

[2019] NZHC 790

IN THE MATTER OF

the Wills Act 2007

BETWEEN

An application by DAVID JOHN ALEXANDER and PHILLIPA JEAN

KALIN for an order correcting the will of JOHN FETTES ALEXANDER under

section 31 of the Wills Act 2007

On the papers
Judgment:	11 April 2019

JUDGMENT OF MALLON J

[1]                 This is an application to correct a will under s 31 of the Wills Act 2007. The will is that of John Fettes Alexander who died on 29 August 2018.

[2]                 Mr Alexander made a valid will on 20 April 2010 (the 2010 will). In this will he appointed Warwick Lupton and Grahame Lance as his executors and trustees. The beneficiaries under the will were his four children: David Alexander, Phillipa Kalin, Jane Boon and Bridget Alexander.

[3]                 Mr Alexander made another valid will on 5 July 2012 (the 2012 will). This will revoked the 2010 will. It appointed Warwick Lupton and James Coleman as his executors and trustees. The beneficiaries under the will remained his four children.

[4]                 On 21 February 2018 Mr Alexander instructed Petra Allen, a solicitor with Treadwell Gordon, to change the executors of his will. He wished to appoint family members to replace the current executors. Following a family meeting, his

Re Alexander [2019] NZHC 790 [11 April 2019]

instructions were to appoint David Alexander and Phillipa Kalin in the place of the current executors. No other changes were to be made.

[5]                 Petra Allen instructed a legal executive with Treadwell Gordon, Rebecca Corson, to draft a codicil to Mr Alexander’s will to make the changes to the executors. When she drafted the Codicil she thought the 2010 will was Mr Alexander’s most recent will. She prepared the Codicil stating that it amended the 2010 will by revoking clause 2 of the will and appointing David Alexander and Phillipa Kalin as executors and trustees. The Codicil also contained a confirmation that in all other respects the will was confirmed.

[6]                 Clause 2 in both the 2010 will and the 2012 will was the clause that appointed Mr Alexander’s executors and trustees.

[7]                 Ms Allen met with Mr Alexander on 4 July 2018 for the Codicil to be signed and witnessed. Ms Allen says that when she met with him, Mr Alexander understood and was clear in his instructions that he wanted to change his executors. The Codicil was signed without it being noticed that it purported to amend the 2010 will rather than the 2012 will.

[8]Section 31 of the Wills Act provides:

31       Correction

(1)This section applies when the High Court is satisfied that a will does not carry out the will-maker’s intentions because it—

(a)contains a clerical error; or

(b)does not give effect to the will-maker’s instructions.

(2)The court may make an order correcting the will to carry out the will- maker’s intentions.

[9]                 The circumstances are similar to that which occurred in Re Armstrong.1 I am satisfied the reference to the 2010 will rather than to the 2012 will was a clerical error. The 2012 will had revoked the 2010 will. The evidence is that the only change

1      Re Armstrong HC Wellington CIV 2008-435-95, 31 July 2008, Judgment of MacKenzie J.

Mr Alexander wanted to make was as to his executors. There is no evidence on the face of the Codicil or otherwise that Mr Alexander wished to revive the 2010 will rather than to confirm the 2012 will.

[10]              The executors under the 2012 will and as appointed by the Codicil consent to an order correcting the will. The beneficiaries of the will have also provided their consent.

[11]              Accordingly I make the orders as sought in the without notice originating application dated 25 February 2019.

Mallon J