Benstead (dec'd) HC Whangarei CIV 2010-488-599

[2010] NZHC 2217

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2010-488-599

BETWEEN  ERIC GEORGE BENSTEAD (DECEASED)

Hearing:         On the papers

Counsel:         L J MacBrayne

Judgment:      10 December 2010 16:00:00

I direct the Registrar to endorse this judgment with a delivery time of 4pm on the

10th day of December 2010.

JUDGMENT OF MACKENZIE J

[1]      Counsel for the applicant has now filed a memorandum in response to my minute of 11 October 2010.  In that minute, I directed that the proceeding was to be served upon those who would have priority, under High Court Rules, r 27.26, to a grant  of  administration.    It  is  apparent  from  counsel’s  memorandum  that  those entitled to priority, under r 27.26(3)(a) are the testator’s grandchildren.  The testator has two grandchildren, both of whom are under 18 years of age.   They are the children of the deceased’s son.  There is a nominal bequest to the son “being a token sum only as he has had no contact with me.”

[2]      Mr MacBrayne  in  his  memorandum  notes  that  it  would  be  necessary  to appoint a litigation guardian for the grandchildren if they were to become involved

in the proceedings.

BENSTEAD (DECEASED) HC WHA CIV-2010-488-599 10 December 2010

[3]      I consider that it is appropriate to reconsider whether the interests of justice require that the application for correction of will to be determined without serving notice of the application.  In Re Zhu (deceased) I said:[1]

In determining the procedure appropriate for a particular case, the overriding concern, in my view, must be to adopt a procedure which will ensure that all persons who may be potentially affected by the granting of relief are given proper notice of the proceedings, and a proper opportunity to be heard.  A further important principle to be taken into account is that the new powers conferred by the Act to validate and correct wills are clearly intended by Parliament to be remedial.   The procedures to be adopted ought to reflect that remedial principle.   Undue expense and formality in the procedures should  not  be  imposed.     The  procedures  should,  consistent  with  the overriding principle that all parties who may be affected must be given notice, be such that applications are dealt with promptly, inexpensively and efficiently.

[1] Re Zhu (deceased) High Court New Plymouth CIV-2010-443-21, 17 May 2010 at [3].

[4]      In this case, the fact that it would be necessary to take separate proceedings to appoint a litigation guardian for the persons who would have priority to a grant of administration adds a degree of cost and delay which must be weighed in the balance in considering the interests of justice under r 7.46(3)(e).  Also to be weighed in the balance is that the order which is sought does not affect the substantive rights of any parties under the will:  all that is affected is the determination of the person who is entitled to administer the estate.  In those circumstances, in the light of the further information now available, I consider that the interests of justice do require that the present application for an order correcting the will be dealt with on a without notice basis.

[5]      I accordingly turn to consider the substantive application.  As I said in my earlier minute:[2]

[2] Re Benstead (deceased) High Court Whangarei CIV-2010-488-599, 11 October 2010 at [2] – [3].

The need for correction arises because of a defect in the appointment of executors.  Clause 3 of the will reads:

I appoint  any one  of  the partners  of  the  legal firm now known as REGENT LAW now practising in Whangarei or of the firm or the entity which on the date of my death has succeeded to and carries on its practice as my executor and trustee (hereinafter call “my trustee”).

That clause is void for uncertainty.   The law is clear that an appointment expressed in terms which permit the appointment of one of a category of

persons,  without  a  means  of  determining  which  of  the  persons  in  that category is to be appointed, will be void for uncertainty.   Thus the appointment of “any two of my sons” or “one of my sisters” have been held void.  The application seeks an appointment which would achieve the result intended by the existing clause, namely that one of the partners in the firm of Regent Law should be appointed, but by a wording which would give a valid appointment.

[6]      Mr MacBrayne has referred in the application to two decisions of this Court where a very similar issue arose, Re Mansfield,[3]  and Re Trehey.[4]     In both cases, orders  similar  to  that  sought  here  were  made.    I  respectfully  concur  with  the reasoning in both decisions.  For similar reasons, I consider that an order correcting the will is appropriate here.

[3] Re Mansfield High Court Auckland CIV-2008-404-7115, 10 March 2009.

[4] Re Trehey High Court Napier CIV-2009-441-899, 16 February 2010.

[7]      There will be an order that cl 3 of the deceased’s will dated 5 November 2009 be deleted and replaced by the following cl 3:

I appoint the Partners at the date of my death in the Firm or Regent Law presently at First Floor, Arnold Franks Building, corner Cameron & Carruth Streets, Whangarei as my Executors and Trustees (in this Will called my “Trustees”) and I express the wish that one and only one of such partners of Regent Law shall prove my will and act initially in the trusts.

A D MacKenzie J

Solicitors:           Regent Law, Whangarei