Ballard

[2025] NZHC 2959

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2025-412-20

[2025] NZHC 2959

UNDER

s 31 of the Wills Act 2007

IN THE MATTER

of the Will of MICHAEL VAUGHAN BALLARD

BY

HEATHER ANN BALLARD

Applicant

Hearing:	On the papers
Appearances:	R M Norris for the Applicant
Judgment:	8 October 2025

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 8 October 2025 at 10.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1]    This is an application for an order under s 31 of the Wills Act 2007, to rectify the will of the late Michael Vaughan Ballard (the deceased). Specifically, the application seeks to insert a residuary clause in the will, which is worded as follows:

To distribute my residuary estate to my wife Heather Ann Ballard.

Re BALLARD [2025] NZHC 2959 [8 October 2025]

[2]The application is made on the following grounds:

(a)the will, as drafted, does not carry out the deceased’s intentions because it fails to deal with the residuary of his estate;

(b)there is compelling evidence that the deceased intended to leave his entire estate to his wife;

(c)the omission of the residuary clause was a clerical error and/or the will does not give effect to the will-maker’s instructions;

(d)section 31 of the Wills Act 2007 provides the Court with the power to correct the will.

Relevant background

[3]    On 16 July 2020, the deceased contacted the law firm Guest Carter (now GHP Law Ltd) to prepare a new will for him. His instructions to Cheryl Scott, a legal executive of the firm, were that he wished to do a “new will leaving everything to Heather”. Mr Alistair Paterson, who at that time was a solicitor of the firm, says he understands the reference to “Heather” as being to the deceased’s then partner, Heather Ann Wright.

[4]    A draft will was prepared and sent to the deceased for approval. Mr Scott notes that he had amended the draft will ahead of his meeting with the deceased by deleting the residuary interest clause, but retaining a clause which reads as follows:

If Heather Ann Wright predeceases me and leaves a child or children who survive me such child or children shall take and if more than one shall take equally between them as tenants in common, the share which their parent would have taken under this Will had that parent lived to attain a vested interest.

[5]    That will, with some other amendments, was then signed on 23 July 2020 and witnessed by Mr Paterson and Ms Scott (the 2020 will).

[6]    Mr Paterson acknowledges that this will omitted a clause leaving the deceased’s residuary estate to his (then) partner Heather Ann Wright. It also deleted what was clause 3(f), which made reference to Heather. He says it is therefore apparent that the 2020 will did not accord with the deceased’s instructions to leave everything to Heather, and was the consequence of an error.

[7]    In 2021, the deceased instructed Mr Paterson and Ms Scott to prepare a new will to reflect the fact that he and Heather had married in 2021. He wanted the existing 2020 will to be updated to refer to Heather’s married name, Heather Ann Ballard, and to refer to her as his wife. Mr Paterson’s understanding is that, other than these changes, the deceased’s intentions remained the same as before. That is, for everything to go to the deceased’s wife.

[8]    It appears the updated will was prepared using the 2020 will as a template, and again, unfortunately, the residuary clause leaving everything to Heather was omitted. This will was executed on 11 May 2021 and is the will that is sought to be rectified.

[9]    Mr Paterson’s understanding is that the deceased’s instructions remained unchanged. He never intended for his will to provide any benefit to anyone other than Heather, and it was simply an unfortunate error that the mistake in drafting the 2020 will was repeated in the 2021 will as a result of reusing the same template and not picking up on the fact the residuary clause had been omitted.

[10]   The applicant, Heather Ballard, confirms that she is the executor of the will and that she and the deceased were in a relationship for 25 years, and were married on 21 April 2021. While her husband did have two children, she says he had been estranged from them for a number of years and did not maintain regular contact. Specifically, the deceased’s daughter, Sarah, told Ms Ballard 22 years ago that she did not speak to her father and, if she saw him, she would ignore him. The deceased had said on previous occasions that she was well set up where she was.

[11]   She also explains that the deceased’s relationship with his son, Jason, was marred because of Jason’s drug dependency. For that reason, he did not want his son to inherit his property at Harrington Point Road, as he did not want the behaviour of

Jason and his associates to upset the neighbours. He also expected that Jason would inherit his mother’s house. Ms Ballard also points out that neither of the children visited the deceased when he was dying of liver cancer.

The jurisdiction to rectify a will

[12]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.

[13]   Before a will can be rectified, the Court must be satisfied, on the balance of probabilities, that the will does not carry out the will maker’s intentions. The will-maker’s intentions can be derived from both direct and circumstantial evidence.1

[14]   In Re Estate of Chiang,2 Toogood J ordered rectification of a will where the will maker had omitted to include a clause disposing of the residuary estate. He was satisfied in that case that there had been an error or oversight in omitting the residuary disposition.

Application to the present case

[15]   I am readily satisfied, in the present case, that there is a clerical error in omitting the residuary clause and, as a consequence, the will does not give effect to the will maker’s instructions.

[16]   I accept there is clear evidence that the deceased intended to leave his entire estate to his wife. This evidence comprises:

1      Wilson v Davidson [2016] NZHC 1238 at [15]–[17].

2      Re Estate of Chiang [2014] NZHC 6 at [3].

(a)the initial communication to Ms  Scott,  recorded  in  her  email  to  Mr Paterson on 16 July 2020, that the deceased “wishes to do a new will leaving everything to Heather”;

(b)Mr Paterson’s evidence that it is his “firm belief that Mike intended to leave the residuary of his estate to his wife Heather”;

(c)Ms Scott’s evidence that the deceased’s instructions for his updated will was to update it to reflect his marriage to Heather but that “other than this change, I believe Mike’s intentions remained the same as before; that is, for everything to go to Heather”;

(d)Ms Ballard’s own evidence that she always understood that her late husband intended to leave his estate to her, and that this was to be reflected in his will; and

(e)Ms Ballard’s evidence as to why he would have omitted his adult children from the will.

[17]   This is further supported by the fact that the draft of the 2020 will included a clause which provided for contingent beneficiaries in the event that the applicant predeceased the testator. This clause would only have been necessary if she was intended to be the sole beneficiary of the residuary estate.

[18]   In both wills, the applicant is appointed as the testator’s personal representative and the whole of the estate is given to her to hold upon certain trusts. I accept the natural conclusion from this language is that she was intended to be the ultimate beneficiary of the estate.

[19]   The applicant and the deceased married shortly after the 2020 will was executed. The deceased’s desire to have the will redrafted to reflect that also supports the conclusion that he intended his wife to be the beneficiary of his estate.

[20]   Finally, I also take note of the fact the deceased’s children do not oppose the application.

[21]   Accordingly, it is clear that the executed will did not reflect the will-maker’s intentions, and rectification could be ordered on this ground alone. Alternatively, there is clear evidence that the omission of a residuary clause, leaving everything to the applicant, was an error, as is acknowledged in the affidavit of Mr Paterson.

[22]   Section 31(2) grants a discretion to rectify the will in such circumstances. Here, the proposed rectification is to insert a provision in the will stating, “to distribute my residuary estate to my wife Heather Ann Ballard”. I am entirely satisfied that it is appropriate to rectify the will as proposed. This both rectifies the identified error and gives effect to the will maker’s intentions. It also avoids a partial intestacy, which, if not rectified, would result in the estate being distributed in a way that was contrary to the deceased’s wishes.

Result

[23]   For all these reasons, I am satisfied it is appropriate  to  make  an  order  under s 31(2) of the Wills Act, that the will dated 11 May  2021  of  the  late  Michael Vaughan Ballard be corrected by inserting the following provision:

To distribute my residuary estate to my wife Heather Ann Ballard.

[24]The costs of this application should also be met from the estate.

[25]I make orders accordingly.

Solicitors:
GHP Law Limited, Dunedin