Estate of Garner - [2013] NZHC 42

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-002794 [2013] NZHC 42

IN THE MATTER OF THE ESTATE OF JEAN GARNER

Hearing: Dealt with on the papers

Judgment: 4 February 2013

JUDGMENT OF FRENCH J

Introduction

[1] Ms Jean Garner died on 29 November 2012. Unfortunately, her last will and testament is said to contain a clerical error in that the number of parts into which the residue of the estate was to be divided is expressed as 21, whereas the correct and intended number was 20.

[2] The trustee and executor named in the will has accordingly applied to the Court under s 31 of the Wills Act 2007 for an order correcting the error and granting him probate of the amended will.

Factual Background

[3] The will in question was made on 27 August 2012.

[4] Subclause 3.2 provides for the executor to “divide the residue into twenty one

equal parts” and to hold such parts upon trusts as follows:

(i) TEN (10) parts to my brother JOHN GARNER.

(ii) ONE (1) part SARA ELIZABETH LEE-SAWYER.

ESTATE OF JEAN GARNER HC CHCH CIV-2012-409-002794 [4 February 2013]

(iii) TWO (2) parts to my god-daughter CATHRYN RUTH LANCASTER.

(iv) ONE (1) part to LUKE DAVID PICKERING.

(v)      ONE (1) part to JOHN WILLIAM PICKERING. (vi)        ONE (1) part to MARY JANE PICKERING.
(vii)     ONE (1) part to JANINE ADRIELLE HUDSON. (viii)     ONE (1) part to SARA FAITH HUDSON.
(ix)     ONE (1) part to TIMOTHY JAMES LANCASTER.

(x) ONE (1) part to the trustees of the TERRACE STATION CHARITABLE TRUST, Hororata for the general purposes of the Trust and I DECLARE that the receipt of the secretary or trustee or other proper officer of the Trust shall be a full and sufficient discharge to my trustees for the same and that my trustee shall not be bound to see the application thereof.

(xi) IF the trusts of any share fail or is renounced, my trustee will add that share or shares to the share of John William Pickering.

[5] The number of listed parts adds up to twenty, not twenty one.

[6] The draftsperson was a solicitor who acted for Ms Garner during her lifetime. He has sworn an affidavit in support of the application. He explains that the same error appeared in two earlier wills dated 5 August 2011 and 2 April 2012. It came about in the following circumstances. On 2 August 2011, he had sent a draft will to Ms Garner for consideration. The draft directed that the residue of her estate be divided into twenty parts. Ms Garner wanted some changes to the draft. These included one beneficiary receiving two parts instead of one part, resulting in the total number of parts being twenty one instead of twenty as per the draft. The changes were duly made and an amended draft prepared. Subsequently, Ms Garner changed her mind again and instructions were received to revert to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 42
Decision Date: 4 February 2013

CaseChat Overview and Summary

In the Estate of Jean Garner, the deceased passed away on 29 November 2012, leaving behind a will that contained a clerical error. The will was drafted on 27 August 2012, and it directed that the residue of the estate be divided into twenty-one equal parts, whereas the intended number was twenty. The trustee and executor named in the will applied to the Court for an order correcting the error and granting him probate of the amended will under section 31 of the Wills Act 2007.

The primary legal issue before the court was whether the will could be corrected to reflect the deceased's actual intentions, despite the presence of a clerical error. The court had to consider whether the correction would accurately reflect the deceased's intentions and whether the proposed correction was reasonable and appropriate.

The court found that the application could be dealt with on a without notice basis because the only person affected by the proposed correction, the deceased's brother, had consented to the amendment. The court also found that the will did not carry out the deceased's intentions because it contained a clerical error and did not give effect to her instructions. Therefore, the court ordered that the will be corrected by deleting the phrase "twenty one (21)" in sub clause 3.2 and replacing it with the phrase "twenty (20)." The court directed the registrar to now consider the application for probate of the corrected will.

In summary, the court granted the application for a correction to the will, finding that the correction accurately reflected the deceased's intentions and was reasonable and appropriate. The court directed the registrar to consider the application for probate of the corrected will.

Orders