Estate of Brown

[2022] NZHC 1183

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000210

[2022] NZHC 1183

UNDER	the Wills Act 2007
IN THE MATTER	of an application for Correction of a Will
IN THE MATTER	of the Estate of MARGARET ZOE BROWN
IN THE MATTER	of an application by DARRYL NOEL MAFFEY for an order correcting a Will

Hearing:	On the papers
Judgment:	26 May 2022

JUDGMENT OF NATION J

Introduction

[1]                   Margaret Zoe Brown (Margaret) owned a home in equal shares with her husband Laurie James Brown (Laurie). Margaret had four children who are now all adults. Laurie is not their father. In her will, she left a life interest in the home to Laurie. With the way the will was drafted, he would have been entitled to the residue in her estate and this would have included her half interest in the home. Her son, who is the executor of her estate, has filed an originating application, to correct the will so that, subject to Laurie’s life interest, Margaret’s half share is held for her children in equal shares.

[2]                   Margaret’s four children and Laurie have completed a deed of family arrangement agreeing that the will should be corrected to reflect Margaret’s intentions.

Estate of Margaret Zoe Brown [2022] NZHC 1183 [26 May 2022]

Background

[3]                   Margaret was married to Laurie for 30 years. Margaret made a will dated 27 May 2015. She named as executors her son Darryl Noel Maffey and a solicitor who, at the time, was employed with the law firm Taylor Shaw. At the time she made the will, Margaret had four adult children, including Darryl Maffey. She had five grandchildren, two of whom are minors.

[4]                   In her will, Margaret left proceeds of any bank accounts held in her sole name to be divided equally between her children. She gave all articles of household use and personal items inherited by her from her family to her trustees to be divided equally between her children. She gave her one half share in any property owned by her and Laurie at her death to her trustees in trust to permit Laurie to have the use of it during his lifetime.

[5]                   The will set out the terms on which Laurie was to have a life interest. These were consistent with terms normally in a will for such a life interest. For instance, he was required to pay outgoings, such as rates and insurance, for that half share of the property. Margaret’s estate was to meet, from capital, the cost of ensuring the property was in good condition immediately after Margaret’s death. Thereafter, Laurie would be responsible for keeping the property in good condition, to the satisfaction of her trustees. There is a power for Laurie to ask Margaret’s trustees to sell her share of the property and for the estate’s half share of the proceeds to be used in the purchase of a substitute home for Laurie.

[6]                   There was provision in the will for what was to happen to Margaret’s estate if Laurie did not survive her for one month. The whole of her estate was, in such circumstances, to be held for the benefit of her four children equally. Laurie did survive Margaret.

[7]                   As completed, the will did not include a specific provision specifying what was to happen to Margaret’s half share in the home after Laurie’s death. As a result, under the will, it became part of the residue of her estate. The residue as to both capital and income was left to Laurie absolutely.

[8]                   There is an affidavit from the solicitor who prepared Margaret’s will. She was named in the will as co-executor but has renounced that executorship because she is no longer employed as a solicitor at Taylor Shaw. In her affidavit she describes the circumstances in which she took instructions from Margaret. The solicitor recalled it was Margaret’s clear instructions that she wanted to ensure her four children would benefit from her assets upon termination of her husband’s life interest in the house. She could not explain how the will came to read as it did after an initial draft had been prepared but said a number of alterations were made electronically to the document at the time Margaret came to the solicitors office to execute the will.

[9]                   In her affidavit, the solicitor agreed the relevant clause of the will as it stands did not give effect to Margaret’s instructions to her nor Margaret’s intentions as the will-maker. She considered the proposed variation and correction of the will would give effect to Margaret’s instructions and intentions.

[10]               Darryl Maffey has made the relevant application as a named executor in her will. He says that Margaret’s estate is reasonably modest. He provided evidence that she had two term deposits amounting to around $93,000 which were in her name. Other bank accounts were shared with Laurie. He understood they would be transferred to Laurie by way of survivorship.

[11]               A deed of family arrangement was attached to Darryl’s affidavit. He said the family had agreed it was important to ensure Margaret’s intentions are honoured. The deed has been signed by Margaret’s four children and Laurie. In the deed, each of them acknowledges they were advised to obtain independent legal advice regarding the deed and their entitlement from the estate and they had, entirely of their own free will, either taken such advice or decided not to obtain such advice.

[12]               In his affidavit, Darryl says he understands none of Margaret’s five grandchildren intends to challenge Margaret’s will.

[13]               I am satisfied that, given the size of the estate and the way Margaret’s clear intentions will be recognised with the correction sought, no grandchild would be able to successfully bring a claim in respect of her estate.

[14]Section 31 of the Wills Act 2007 states:

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.

[15]               Against that background, I am satisfied there is no need for the application to be served on actual or potential beneficiaries of Margaret’s estate under the will as it stands or the solicitor who had been named as an executor but who has renounced her executorship.

[16]               I consider the amendment sought is necessary to give effect to Margaret’s intentions.

[17]The relevant cl 2(e) of the will currently reads:

FROM the first point in time (“the cessation date”) when I have died and my husband the said LAURIE JAMES BROWN then my property shall fall into and form part of my residuary estate.

[18]I make an order that the relevant cl 2(e) is now to read as follows:

FROM the first point in time when I have died and my husband the said LAURIE JAMES BROWN has died (“the cessation date”) to divide my property as follows:

(i)    AS to ¼ share thereof UPON TRUST as to both capita and income for my daughter the said KIM ROBYN BRIGHT absolutely PROVIDED NEVERTHELESS that in case my said daughter shall have predeceased me whether before or after the date of my Will or shall survive me and die before attaining a vested interest in my estate leaving a child or children who shall survive me or be born after my death and who shall attain the age of twenty five (25) years such issue shall take per stirpes and if more than one in equal shares the share that his her or their mother would have taken had she survived me.

(ii)   AS to ¼ share thereof UPON TRUST as to both capital and income for my son the said DARRYL NOEL MAFFEY absolutely PROVIDED NEVERTHELESS that in case my said son shall have predeceased me whether before or after the date of my Will or shall survive me and die

before attaining a vested interest in my estate leaving a child or children who shall survive me or be born after my death and who shall attain the age of twenty five (25) years such issue shall take per stirpes and if more than one in equal shares the share that his her or their father would have taken had he survived me.

(iii)    AS to ¼ share thereof UPON TRUST as to both capital and income for my daughter the said DONNA HELEN GILLATT absolutely.

(iv)    AS to the remaining ¼ share thereof UPON TRUST as to both capital and income for my son the said ERROL LAURIE MAFFEY absolutely.

Solicitors:
Taylor Shaw, Christchurch.