Bonnington

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

CaseChat Overview and Summary

The case before the High Court of New Zealand involved the estate of Josephine Bonnington, who passed away on or around October 1, 2015. The dispute arose from a clerical error in her will, dated 2007, which was discovered during the application for probate. Josephine's children, Alexander, Ruth, and Bernard Bonnington, sought an order to correct the error under section 31 of the Wills Act 2007. The will originally appointed Josephine's children as executors in the event that her husband did not survive her, but a clear mistake in the wording referred to "wife" instead of "husband." The children aimed to have this corrected to reflect their mother's true intentions.

The central legal issue was whether the court had the authority to correct the obvious clerical error in Josephine's will to accurately reflect her intentions. The court needed to determine if the error was apparent and whether the correction would not alter the substance of the will. The children argued that the error was clear and did not change the essence of the will, which was to appoint them as executors if their father, not their mother, predeceased Josephine.

The court, in its judgment, found that the error in the will was indeed apparent and did not change the substance of Josephine's intentions. The judge was satisfied that the will, as it stood, did not accurately reflect Josephine's intentions due to the clerical error. The judge then ordered that the word "wife" in clause 4 of the will be replaced with the word "husband." This correction aligned with Josephine's actual instructions and the intentions conveyed to her solicitor, Mr. Rolfe, who admitted to the clerical mistake. The court's ruling ensured that the will now correctly represented Josephine's wishes, with her children appointed as executors if her husband, not she, predeceased her.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established