Estate of Allen

[2017] NZHC 916

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2017-485-354 [2017] NZHC 916

IN THE MATTER	of section 31 of the Wills Act 2007
AND
IN THE MATTER	of the estate of JOSEPHINE IVY ALLEN Deceased

Hearing:	On the papers
Counsel:	D J Brown Applicant in person
Judgment:	9 May 2017

JUDGMENT OF FAIRE J

This judgment was delivered by Justice Faire on 9 May 2017 at 3.00 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           David J Brown & Associates, Titirangi

RE ESTATE ALLEN [2017] NZHC 916 [9 May 2017]

[1]      Application is made by the solicitor of the deceased, the late Josephine Ivy Allen who died at Auckland on 3 February 2017 for orders in reliance on s 31 of the Wills Act 2007.

[2]      Section 31 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.

[3]      The Applicant is a solicitor practising in Titirangi, Auckland.  He acted for the deceased in her lifetime since October 2014.  In that time he prepared three wills for the deceased being wills signed by the deceased on 5 November 2014, 5 June

2015 and 25 January 2017.  In each case he took the instructions to prepare the wills concerned.

[4]      The Applicant deposes that the deceased’s instructions and her intention for the will signed on 25 January 2017 was that one bequest beneficiary, Raymund Stanley Jenkin, be removed from the will.   In all other respects the named beneficiaries and the amounts bequested to each was to remain the same, as set out in the will signed on 5 June 2015.  He deposed that the mistake occurred because the

2017 will had been prepared based on the 5 November 2014 will where different amounts were referred to those contained in the will of 5 June 2015.

[5]      The  Applicant  deposes  that  the  mistake  was  identified  when  he  was

discussing the deceased’s testamentary instructions with the deceased’s executor on

7 February 2017, four days after the deceased’s death.

[6]      The Applicant deposes that he is “absolutely certain that the deceased would have wished the provisions of clause 4 of her will of 25 January 2017 to be as follows:

4.        I GIVE AND BEQUEATH as follows:

(a)      To the said TREVOR LESLIE ALLEN the sum of $50,000; (b)     To COLLEEN MURIEL GIBBS the sum of $10,000;

(c)      To JOAN HUKS the sum of $5,000;

(d)      To DIANNE NITA GYDE the sum of $20,000; (e) To HELENA MARY IRWIN the sum of $15,000;

(f)       To PAULINE KATHLEEN BURGESS the sum of $15,000.

[7]      I am satisfied all parties who have an interest in this application have in fact signed a consent to the orders which are sought.  For that reason it is appropriate that I deal with the application on a without notice basis.

[8]      I am satisfied that the provisions of s 31 of the Wills Act 2007 is properly engaged and that it is appropriate that orders be made.  Section 31 set out in statutory form the rectification powers that the High Court has developed since the comments of Fisher J in re Jensen.1    There is no need in my judgment on this application to review subsequent authorities.   Suffice to say that having considered them, I am satisfied that the orders sought are appropriate in this case.

[9]      Accordingly,  I make orders  in  terms  of  the consent  order filed with  the application.

[10]     This judgment should now enable the appropriate application for probate in respect of the will of the deceased to be filed in the usual way.

..................................................................

Faire J

1      Re Jensen [1992] 2 NZLR 506 at 511-512.