Bonnington

[2016] NZHC 653

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV2015-485-615530 [2016] NZHC 653

UNDER

Wills Act 2007

IN THE ESTATE

of JOSEPHINE PIHEPA BONNINGTON of Auckland in New Zealand, Married Woman latterly Retired

Deceased

On the papers

Judgment:                12 April 2016

JUDGMENT OF CLARK J

I direct that the delivery time of this judgment is

4pm on 12 April 2016

Bonnington [2016] NZHC 653 [12 April 2016]

[1]      Mrs Josephine Bonnington died on or about 1 October 2015.   In her will dated 2007 she appointed her children as executors in the event that her husband did not survive her.  He did not.

[2]      An obvious clerical error in the will was discovered during application for probate.  Mrs Bonnington’s children — Alexander, Ruth and Bernard Bonnington — apply for an order that the error be corrected pursuant to s 31 of the Wills Act 2007.

[3]      The will relevantly reads:

4SHOULD my said wife not be living at my death  I DIRECT that the following provisions of this paragraph numbered 4 of this my will shall apply to my estate: —

(a)       I APPOINT my children the said ALEXANDER WILLIAM BONNINGTON, ROBYN RUTH BONNINGTON and BERNARD  THOMAS  BONNINGTON,  (hereinafter together with the survivor or the survivors of them referred to as “my trustees”) to be the executors and trustees of this my will.

[4]      The reference to “wife” in cl 4 was clearly intended to read “husband.”

[5]      Mr  Rolfe  was  the  solicitor  who  prepared  the  wills  of  Mr  and  Mrs Bonnington.  Mr Rolfe deposes that Mr Bonnington’s instructions were to give the whole of his estate subject to expenses to his wife Mrs Bonnington and that she was to be the sole executor and trustee.  If she did not survive him, the children were to be the executors and trustees.  Mrs Bonnington’s instructions were that her will was to mirror her husband’s but for the necessary clerical changes.

[6]      Mr Rolfe says that it was his error that resulted in cl 4 of Mrs Bonnington’s will referring to “wife” instead of “husband”.   He attended on Mr and Mrs Bonnington when they signed their wills.  No one noticed the error at the time the wills were signed.

[7]      Mr Rolfe is satisfied that the will does carry out Mrs Bonnington’s intentions

other than that it refers to “wife” instead of “husband”.

[8]      I am satisfied that the will as it stands does not carry out Mrs Bonnington’s

intentions because of the clerical error.  I therefore make the following order:

(a)       The word “wife” in cl 4 is to be replaced with the word “husband”.

Karen Clark J