Anderson, re HC Timaru CIV 2010-476-340

[2010] NZHC 1368

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2010-476-000340

IN THE MATTER OF     the estate of James Irwin Anderson

FRANCES COMFORT ANDERSON MARY LOIS CORNWALL Applicants

Hearing:         On the papers

Counsel:         G F Kelly for Applicants

Judgment:      2 August 2010

JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an application for an order under s 31 of the Wills Act 2007 correcting the will of the deceased, Mr James Irwin Anderson.

[2]      The application is made on a without notice basis by his widow and daughter. It is supported by affidavits from Mrs Anderson and the daughter, as well as from the family’s solicitor and a legal executive who prepared Mr Anderson’s will.

[3]      Mr and Mrs Anderson made mirror wills on 30 July 2009.

[4]      The intention of each of the wills was that each would leave their respective estates to each other, with gifts over in each case to their only child, their daughter Mary.

[5]      Mr Anderson died on 29 May 2010.

[6]      Following his death it was discovered that unfortunately his will contained an obvious clerical error.

ANDERSON AND ANOR HC TIM CIV-2010-476-000340  2 August 2010

[7]      Clause 4 of the will was defective in that Mr Anderson purported to give his estate “to my husband the said James Irwin Anderson absolutely should he survive me for the period of one week but should he not survive me then for my daughter the said Mary Lois Cornwall absolutely”.

[8]      Obviously the clause should have provided that the residue was to pass to

Mrs Anderson if she survived him.

[9]      The only persons affected by this application are the applicants themselves. [10]     I am satisfied it is appropriate that the application be made on a without

notice basis.

[11]     I am also satisfied, following Smart HC Palmerston North CIV-2010-454-

000112, 30 April 2010, McKenzie J, that this is an appropriate case for the exercise of the Court’s powers under s 31 of the Wills Act.  The error is an obvious one.  It falls squarely within the category of mistakes which may be corrected under s 31, and it clearly should be corrected.

[12]     There can be no doubt that if the error had been noted before the will was signed Mr Anderson would have wished to have it corrected in the way now proposed.

[13]     There will accordingly be an order that line 10 of cl 4 of the will of the deceased dated 30 July 2009 be corrected by deleting the words “for my husband the said James Irwin Anderson absolutely should he survive me for the period of one week but should he not survive me” and replacing those words with “for my wife the said Frances Comfort Anderson absolutely should she survive me for the period of one week but should she not survive me”.