Brown v Doole HC Napier CIV 2010-441-648

[2010] NZHC 1909

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2010-441-648

UNDER THE                   Wills Act 2007, section 31

IN THE ESTATE OF      EILEEN HILDA CALDER MARGARET ANNE BROWN

First Applicant

ANDMARTIN ROGER DOOLE, MICHAEL CHARGES MORGAN, GAVIN ROSS JOHN THORNTON, GRAHAM PAUL CLIFFORD MORGAN AND DAVID CHAN

Second Applicants

Judgment:      27 October 2010 (on the papers)

JUDGMENT OF VENNING J

Solicitors:           Carlile Dowling, Napier (A J Pidd)

BROWN AND ANOR HC NAP CIV-2010-441-648  27 October 2010

[1]      The  Registrar  has  referred  this  file  to  me  as  Duty  Judge.    There  is  an application before the Court for an order under s 31 of the Wills Act 2007 to amend provisions of the Will of the deceased.

[2]      The deceased, who died on 8 September 2010, made a Will on 14 November

2006.  Clause 2.1 of the Will states:

I appoint as my executors and trustees (“my executors”) any one of the partners at the date of my death in the firm of Carlile Dowling presently of Raffles Street, Napier, or such other firm which at my death has succeeded to  and  carries  on  its  practice  and  my  daughter  MARGARET  ANNE BROWN of Eskdale as my Executors and Trustees (in this Will called “my Executors”).

[3]      Ms Pidd has sworn an affidavit in which she deposes that she prepared the Will for the deceased.   At the time she prepared this particular Will it was her practice to recommend to clients that the clause in the Will be worded so that all of the partners of the firm could act as executors.   She believed that the clause as drafted would achieve Mrs Calder’s intentions.

[4]      However, in the case of Re Horgan (Deceased) Latey J held that a clause appointing as executors any two of however many partners may be surviving at the time of the testator’s death, without identifying those partners, would be void for uncertainty[1].  In this case the bare reference to any one of the partners would make the clause prima facie void for uncertainty.

[1] Re Horgan (Deceased) [1969] 3 All ER 1570.

[5]      The application seeks a correction under s 31 of the Wills Act 2007.  Section

31 has been considered by a number of Judges of this Court.   In this case I am satisfied on the evidence before the Court that s 31(1)(b) applies.   The Will as currently drafted does not carry out the Willmaker’s intentions because it does not give effect to her instructions by reason of uncertainty.  Ms Pidd has confirmed the Willmaker’s intention and her instructions.   The requirement for correction under s 31(1)(b) has been satisfied.  The Court can, and is able to make an order correcting the Will under s 31(2) to meet the Willmaker’s intentions and instructions.   The amendment sought is to replace existing cl 2.1 of the Will with the following clause:

2.1      I appoint my daughter MARGARET ANNE BROWN of Eskdale, together with the partners at the date of my death in the firm of Carlile Dowling presently of Raffles Street, Napier, as my Executors and Trustees (in this Will called “my Executors”) (and I express the wish that one and only one of such partners of Carlile Dowling shall prove my Will and act initially in its trusts).

[6]      Order  accordingly.     The  application  for  probate  is  to  be  returned  to  the

Registrar for further consideration.

Venning J