Armstrong HC WN CIV 2008-435-95

[2008] NZHC 2456

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2008-435-95

IN THE ESTATE OF    FLORENCE REMUERA ARMSTRONG Deceased

Appearances: On the Papers

Judgment:      31 July 2008 at 4pm

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 4pm on the 31st day of July 2008.

RESERVED JUDGMENT OF MACKENZIE J

[1]      In this application for probate in common form, an ex parte application for an order correcting a codicil to the will has been made, under s 31 of the Wills Act

2007.

[2]      The circumstances are set out in affidavits by each of the two executors. They may be briefly described.  The testatrix had made a will dated 3 April 1996. The preparation of that will was attended to by her then solicitors.   She made a further will dated 2 July 2002, through the same firm of solicitors.  That will revoked the 1996 will.  In August 2005, she consulted Ms Cooke, a partner in another firm. She  indicated  a  wish  to  change  solicitors.    She  gave  Ms  Cooke  an  envelope containing a number of documents, which contained a copy of the 1996 will, along with a copy of an earlier will.   A draft new will was prepared, but that was not finalised.    In  February  2008  Ms  Cooke  received  further  instructions  from  the testatrix.   She received instructions to change the appointment of executors,  by appointing one of her sons and Ms Cooke as executors.  The instructions also were

to revoke a clause in the will expressing the desire that the former solicitors be

ARMSTRONG HC WN CIV 2008-435-95  31 July 2008

employed as solicitors in relation to the administration of the will.  Both the 1996 will and the 2002 will contained such a provision, at paragraph [7] in the 1996 will and at paragraph [9] in the 2002 will.   Ms Cooke was not aware of the 2002 will when she prepared the codicil to give effect to those instructions.  She understood, from the documents she had received, that the 1996 will was the operative will.  The codicil was accordingly drafted in terms which were appropriate to the 1996 will, rather than the 2002 will.

[3] The application seeks two corrections to the codicil: first, to insert the correct date of the 2002 will into the codicil; second to alter the reference to paragraph [7] of the will to paragraph [9].

[4]      Section 31 confers a new power on the Court.  It extends the previously more limited power of the Court to correct errors.  It provides as follows:

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.

[5]      The first question which the Court must consider in this case is whether the will carries out the will-maker’s intentions.  There are broadly two possibilities as to the will-maker’s intentions, as those intentions appear from the testamentary documents.  The first is that her intention, in referring in the codicil to the 1996 will, was to revive that will.  The second is that her intention was to amend the will which was current immediately before the codicil was signed, which was the 2002 will.

[6]      As to the first of those possibilities, s 17 provides that a revoked will may be revived if the will-maker makes a codicil that makes clear his or her intention to revive the will.  The authorities establish that, for a will to be revived in this way, the intention to revive it must appear on the face of the codicil, either by express words

referring to a revoked will and importing an intention to revive it, or by a disposition of  the  testator’s  property  inconsistent  with  any  other  intention,  or  by  some expression showing with reasonable certainty the existence of the intention in question.  (In the Goods of Steele (1868) 1 P&D 575).   Evidence of the attendant circumstances is admissible. (In the Goods of Davis [1952] 1 P 279). A codicil which expressly refers to a revoked will is not by itself sufficient to revive the will in the absence of some indication of an intention to revive it. Under the equivalent former provision, s 22 of the Wills Act 1837 (UK) it has been clearly established that simply describing the codicil as a codicil to the last will, but giving the date of an earlier revoked will, is not sufficient to revive the earlier will. (In the Goods of May (1868) 1 P&D 575;   In Re Rhodes (1915) 34 NZLR 190 and Re Dear [1975] 2

NZLR 254).   The principles on which those cases were decided remain equally applicable under s 17 of the 2007 Act.  Additionally, the Court now has the power, under s31, to correct the error in the date.   In this case, I consider that there is nothing in the codicil which indicates an intention to revive the will.

[7]      That leaves for consideration the second possibility, namely that the insertion of the reference to the 1996 will was in error.  The evidence satisfies me that this is the case here.  Ms Cooke’s evidence makes it quite clear that she was unaware of the

2002  will,  and  understood  that  the  1996  will  was  the  current  will.     That understanding was incorrect.   There is nothing in the evidence to suggest that the misunderstanding was induced by the testatrix, or that the testatrix had a similar misunderstanding.  The evidence satisfies me that the intention of the testatrix was to alter the appointment of executors, and solicitors, in the then current will.  That was the  essence  of  her  instructions  to  Ms Cooke.    Accordingly,  I  consider  that  the requirements for correction in s 31 are made out.  Both limbs are applicable.  The reference to the incorrect will falls within the scope of the term “clerical error”.  The incorrect reference also means that the codicil as drafted does not give effect to the will-maker’s instructions, which were to amend her then current will.

[8]      As this is possibly the first case involving an application under s 31, some comment on the appropriate procedure may be helpful.  The application under s 31 has been made as an ex parte interlocutory application in the application for probate in common form.  In Re Moore (deceased) [1991] 4 PRNZ 217, an application was

made by originating summons under the Declaratory Judgments Act 1908 for a declaration that certain words be deleted from a will in order to reflect the testator’s intentions.    That  relief  was  sought  under  the  much  more  limited  powers  then available to the Court to correct errors in a will.  Tompkins J expressed concern as to whether that was the appropriate procedural course.   He was of the view that the proper course would have been for the executors and trustees to apply for probate of the  will  with  the  challenged  words  omitted.    That  appeared  to  have  been  the procedure adopted in a number of English cases including Re Morris [1970] 1 All ER 1057. He also noted, however, that in the earlier New Zealand case of Re Lourie [1968] NZLR 541 the originating summons procedure had been adopted.

[9]      I consider that, where the error sought to be corrected is noticed before probate is obtained, so that what is sought is probate of the will with the correction having  been  made,  the  appropriate  procedure  is  to  make  the  application  for correction under s 31 as an interlocutory application in the probate proceedings. Careful consideration must be given to whether the application for probate should be made in common form or in solemn form.  Where a correction is sought, that will often mean that an application for probate in common form, under r 634 of the High Court Rules, will be inappropriate, because of the possible effect of the correction on the rights of those claiming under the will.   In such a case, application should be made in solemn form under r 636.

[10]     Whether the application for probate is made in common form or in solemn form, it is a “proceeding” within the meaning of that term in r 3.  Part 3 of the High Court Rules  applies  to  the  interlocutory matters  arising in  the  proceeding.    An application for an order under s 31, where that is made prior to the grant of probate, is within the definition of interlocutory order.   It concerns relief ancillary to that claimed in the grant of probate, in that what is sought is probate of the corrected will. Whether the application should be made on notice, or ex parte, will depend upon the circumstances and the requirements of Part 3.  Where the application for probate is in common form, the fact that that is itself an ex parte application, under r 634(8), will be a relevant consideration.

[11]     In the case where the error is not noticed until after probate has been granted, so that a separate application for correction is required, the usual procedure for an application for an order under s 31 would be by way or originating application under part 4, or part 4A, of the High Court Rules.  Such an application would fall within r 447(i), so that part 4 applies.   Consideration might also be given to whether the matter is suitable for part 4A, under r 458D(1)(e).

[12]     In this case, the application for probate has been made in common form.  The terms of the 1996 will and the 2002 will are broadly similar.  There are some specific bequests in the 2002 will which are not contained in the 1996 will.  The residuary provisions are essentially the same under both wills.  Accordingly, it appears that the only persons who might be disadvantaged by a decision that the 1996 will is not revived would be the residuary beneficiaries, the four sons of the testatrix.  All four have consented to the present application and expressed the view that their mother’s intention was to affirm the 2002 will.  In those circumstances, I do not consider that it is necessary to impose on the estate the additional expense and delay which would be involved in an application for probate in solemn form.

[13]     There  will  be  an  order  that  the  first  codicil  dated  21  February 2008  be corrected as follows:

(a)       By omitting in the preamble the date 3 April 1996 and substituting the date 2 July 2002;  and

(b)In clause 2 of the codicil deleting the numeral “7” and substituting the numeral “9”.

[14]     The   application   for   probate   is   to   be   returned   to   the   Registrar   for consideration.

“A D MacKenzie J”

Solicitors:         WMC Legal, Greytown