Estate of Condie

[2024] NZHC 90

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-124

[2024] NZHC 90

UNDER

of s 31 of the Wills Act 2007

IN THE MATTER

of the estate of IAN STEWART MALCOLM CONDIE

AND

IN THE MATTER

of an application for correction of a Will

NELLIE-MAY CONDIE and MURRAY

GRAY CONDIE as executors of the estate of Ian Stewart Malcolm Condie

Applicants

Hearing (by telephone conference):	5 February 2024
Appearances:	A Clark-Tahana for Applicants
Judgment:	5 February 2024

JUDGMENT OF OSBORNE J

[1]                  The applicants, Nellie-May Condie (Mrs Condie) and Murray Gray Condie, are the executors of the estate of the late Ian Stewart Malcolm Condie. They apply for correction of an error in the wording of his last will.

The issue

[2]                  The issue is explained in an affidavit of Sharon Knowles, a partner in the firm Anderson Lloyd. The firm acted for Mr Condie for some 26 years including in relation

Re Estate of Ian Stewart Malcolm Condie ex parte N-M Condie and M G Condie [2024] NZHC 90 [5 February 2024]

to his wills. The firm now acts for the applicants as the executors of Mr Condie’s will. Mrs Condie is the widow of Mr Condie.

[3]                  Ms Knowles’ evidence clearly indicates (and why) the intention of Mr Condie was to gift his investment portfolio to Mrs Condie and, upon her death, to gift any balance outstanding to his former school, Robert Gordon’s College.

[4]                  The relevant clause of the will to effect that intention was cl 3.5 which, as typed and signed, reads (emphasis added):

I give my share of the investment portfolio with New Zealand Financial Planning to my wife Nellie-May Condie (May) to have unrestricted access to the income and capital for the duration of her life. Any balance left outstanding at the date of my death shall be given to Robert Gordon’s College (my former school) located at 1 Schoolhill, Aberdeen, Scotland. The receipt of the Secretary, Treasurer or other duly authorised officer of the organisation shall be a full discharge to my Trustees and my Trustees shall not be responsible for nor bound to see to the application of any such moneys.

[5]                  Ms Knowles explains that the correct wording of cl 3.5 should have been (emphasis added):

I give my share of the investment portfolio with New Zealand Financial Planning to my wife Nellie-May Condie (May) to have unrestricted access to the income and capital for the duration of her life. Any balance left outstanding at the date of May’s death shall be given to Robert Gordon’s College (my former school) located at 1 Schoolhill, Aberdeen, Scotland. The receipt of the Secretary, Treasurer or other duly authorised officer of the organisation shall be a full discharge to my Trustees and my Trustees shall not be responsible for nor bound to see to the application of any such moneys.

[6]                  Ms Knowles explains how there was a clerical error in typing the word “my” instead of “May’s” in cl 3.5. As she says, the clause as drafted and signed makes no sense — if Mr Condie’s intention had been to gift the investment folio to the College, there would have been no need to include Mrs Condie (“May”) when giving instructions for the drafting of the clause.

[7]                  The Board of Governors of the College was consulted in relation to this proceeding and has provided its written consent to the correction of cl 3.5.

Correction of a will

[8]                  Under s 31 Wills Act 2007, this Court may make an order correcting a will to carry out the will-maker’s intentions if satisfied the will does not carry out those intentions because it contains a clerical error or does not give effect to the will-maker’s intentions.

Discussion

[9]                  I am satisfied on the evidence that Mr Condie’s last will, and in particular clause 3.5, did not carry out his intentions because it contained a clerical error and did not give effect to his instructions.

Order

[10]              I order that cl 3.5 of the will of the late Ian Stewart Malcolm Condie dated 22 April 2022 is corrected to read:

I give my share of the investment portfolio with New Zealand Financial Planning to my wife Nellie-May Condie (May) to have unrestricted access to the income and capital for the duration of her life. Any balance left outstanding at the date of May’s death shall be given to Robert Gordon’s College (my former school) located at 1 Schoolhill, Aberdeen, Scotland. The receipt of the Secretary, Treasurer or other duly authorised officer of the organisation shall be a full discharge to my Trustees and my Trustees shall not be responsible for nor bound to see to the application of any such moneys.

Osborne J

Solicitors:

Anderson Lloyd, Solicitors, Dunedin