Estate of Glencross

[2023] NZHC 1722

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-79

[2023] NZHC 1722

IN THE MATTER

Section 31 of the Wills Act 2007 and Part 19 of the High Court Rules 2016

IN THE MATTER

The Estate of ROBERT GLENCROSS

IN THE MATTER

STACEY JANE HUDSON, THOMAS ALEXANDER CASTLE and

HOLLY JEWEL HAWKINS, in their

capacity as executors in the Estate of ROBERT GLENCROSS

Applicants

Hearing:

On the papers

Appearances:

A E Fraser for the Applicants

S T Scott for Craig Miles Hudson (litigation guardian for the Children)

Judgment:

5 July 2023

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 5 July 2023 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Burley Castle Hawkins Lawyers, Tauranga

THE ESTATE OF ROBERT GLENCROSS [2023] NZHC 1722 [5 July 2023]

Introduction

[1]                 The   applicants   in   their   capacity   as   executors   of   the   Estate   of    Mr Robert Glencross (Deceased) seek orders correcting his will on the basis that, as a result of a drafting error, the children of the Deceased are recorded as the residuary beneficiaries rather than the Deceased’s partner, Ms Stacey Jane Hudson (Stacey), one of the applicants.

[2]                 The children are now 18, 12 and 11. By my minute dated 8 May 2023, I appointed Mr Craig Miles Hudson as the litigation guardian for two of the children, who are aged 12 and 11 years old respectively. Mr Hudson instructed Mr Steve Scott as counsel. Mr Scott was also instructed by the third child of the relationship (the Deceased’s step-son) who is now aged 18.

[3]                 A memorandum was filed by Mr Scott on behalf of Mr Hudson and Mr Rota on 26 June 2023 consenting to the orders sought in these proceedings.

[4]                 I briefly set out the background below before making the orders as sought by consent.

Background

[5]                 The Deceased and one of the applicants, Stacey Jane Hudson (Stacey) commenced living in a de facto relationship in October 2007. Pursuant to a relationship property agreement dated 2 July 2009, Stacey acquired a one-half share in the property on Palm Beach Boulevard (Family Home) which was transferred to her family trust, the JARRAH TRUST (Jarrah Trust).

[6]                 The beneficiaries and final beneficiaries of the Jarrah Trust are the children of the settlor, namely the children of Stacey. The Deceased and Stacy had three children of the relationship:

(a)the step-son of the Deceased who was five when the de facto relationship began and is now aged 18; and

(b)a daughter, aged 12; and

(c)a son, aged 11.

[7]                 The Deceased made a prior will dated 13 March 2015 in which he left his entire estate to Stacey with a gift over to the three children in the event Stacey predeceased him.

[8]                 Burley Castle Hawkins, solicitors, were contacted by Stacey on 15 September 2021 advising that the Deceased had terminal brain cancer and giving instructions for an  alteration  to  the  will.    An  internal  email   of  Burley  Castle  Hawkins  on    15 September 2021 records that “Stacey advised that Rob [the Deceased] has left his half-share to her absolutely and that he would be happy for it to be left to the Jarrah Trust absolutely.”

[9]                 The firm drafted a will for the Deceased leaving everything to the Jarrah Trust and sent it to the Deceased for approval under cover email dated 22 September 2021.

[10]             The Deceased replied by email the following day, 23 September 2021, advising the draft will was incorrect and that his wish was for his half-share of the Family Home to go to the Jarrah Trust and “all other assets or chattels in [his] estate [to] go to Stacey.” The email explained that this was to ensure that the only asset to be held by the Jarrah Trust was the Family Home. Later that day, 23 September 2021, Burley Castle Hawkins replied attaching an amended will and enduring powers of attorney “updated as per your instructions this afternoon.”

[11]             However, instead of the will being prepared in accordance with the email instructions of 23 September 2021, whilst the share in the Family Home was transferred to the Jarrah Trust, the balance of the estate was left to the children, rather than Stacey.

[12]             Counsel for the children, Mr Scott, has perused the will instruction file and the estate administration file and confirms in his memorandum dated 26 June 2023 that

there is nothing on either file to suggest that this was not a simple drafting error overlooked by both the firm and the Deceased.

[13]             Mr Scott explains that in the event that the orders sought in these proceedings are not granted, Stacey would have rights under the Property (Relationships) Act 1976 in respect of the balance of the Deceased’s estate which includes savings and a valuable superannuation entitlement.

[14]             Mr Scott records that the children of the relationship are receiving a valuable benefit in respect of the intended will, which they were not receiving under the 2015 will, namely that the family home is now an asset of the Jarrah Trust of which they are final beneficiaries. Counsel for the children therefore confirms that the children consent to the orders sought in these proceedings.

Result

[15]By consent, I order:

(a)the will of the Deceased dated 1 October 2021 is corrected to carry out the Deceased’s intention by deleting paragraph 6(c) of the will in its entirety and replacing it with:

6(c)To give the balance of my estate (“my residuary estate”) to Stacey.

(b)Burley Castle Hawkins, solicitors, are to meet the costs of Mr Scott; and

(c)there is no order as to costs otherwise.

Associate Judge Sussock