Estate of Hansen HC Hamilton CIV 2011-419-001249

[2011] NZHC 1490

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2011-419-001249

IN THE MATTER OF     Section 31 Wills Act 2007

BETWEEN  IN THE ESTATE OF MARY LOUISA HANSEN

ANDSIMON REDDING MAKGILL, MATTHEW PHILIP HANNA, LISA JULIE WARE

Applicants

Hearing:         On the papers

Judgment:      9 November 2011

JUDGMENT OF KEANE J

This judgment was delivered by Justice Keane on 9 November 2011 at 11.45 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Lewis' Solicitors, P.O. Box 529, Cambridge

IN THE ESTATE OF MARY LOUISA HANSEN HC HAM CIV 2011-419-001249 9 November 2011

[1]      Mary Hansen died on 18 August 2011, leaving a will dated 26 November

2010 in which she appointed 'any two of the persons who at the date of my death are partners in the firm of Lewis', solicitors at Cambridge' her executors and trustees.

[2]      On 11 October 2011 two partners in that firm, Simon Makgill and Matthew Hanna, applied for probate. On 22 September 2011, however, Registrar Parker issued a minute in chambers holding that the appointment of the executors and trustees was void for uncertainty; in this relying on the judgment of Woodhouse J In The Estate of

Trehey.[1] The uncertainty lay in which of the partners of the firm were appointed.

[1] In The Estate of Trehey HC Napier CIV 2009-441-899, 16 February 2010.

[3]      On 7 October 2011, therefore, all the partners in the firm applied for an order under s 31 of the Wills Act 2007 to correct the appointment clause on the ground that the existing clause was void for uncertainty and that the clause they proposed in its place gave effect to the intent and purpose of the will-maker.

[4]      The applicants seek, in place of the existing appointment clause, one which makes only one material change. They seek still to confine the appointment to 'any two of the persons who at the date of my death are partners in the firm of Lewis', solicitors at Cambridge'. But they wish to qualify that by adding in parenthesis this,

'and I express the wish that two and only two of such partners of Lewis', solicitors shall prove my Will and act initially in its trusts'.

[5]       Section 31 enables this Court to make an order correcting a will to carry out the will-maker's intentions when, as subs 1(b) says, it is 'satisfied that a will does not carry out the will-maker's intentions because it - does not give effect to the will- maker's instructions.'

[6]      That ordinarily calls for evidence as to what the will-maker's instructions were and here there is none. I have decided, however, despite that, and for two reasons, to decide the application on the papers as they are. One is that on the face of the appointment clause as it is Ms Hansen clearly intended that the firm should act as her executors and trustees. The other is that the appointment clause appears to derive

from Dobbies' Probate and Administration Practice (5th edition), para 17.12; a now

well established source of difficulty. It has resulted in two earlier cases, Trehey and

In the Estate of Mansfield.[2]

[2] In The Estate of Mansfield HC Auckland CIV 2008-404-7115, 10 March 2009.

[7]      In Mansfield, where the will-maker appointed as her executors and trustees

'two partners for the time being of the firm of Wynyard Wood, solicitors practising at Auckland', Asher J held that to be inconsistent with the testator's intent to appoint the firm as a whole. He chose not to adopt the form of words endorsed in the English case Re Horgan (deceased)[3]  -  to appoint firm as a whole but to qualify that, as is applied for here, with an expressed wish that two partners only should act. The will-maker's intent was to appoint the firm as a whole and it had a limited number of partners. Instead he chose to correct the will to appoint 'the partners at the date of my death'; the firm as a whole.

[3] Re Horgan (deceased) [1971] P50; [1972] WLR 393; [1969] 3 All ER 1570.

[8]      In Trehey, by contrast, where the will-maker appointed as one of her two executors and trustees 'any one of the partners at the date of my death in the firm of Carlisle Dowling,' or any succeeding firm, and went on, as here, to 'express the wish that one and only one of such partners ... shall prove my will and act initially in its trusts', Woodhouse J corrected the will to appoint as executors and trustees the firm as a whole qualified by that wish in the original clause.

[9]      There could then be no uncertainty, he said, as to the identity of the executors and trustees, the partners of the firm as at the date of the testator's death. Nor, he said,  did the wish expressed created any uncertainty. It was precatory. Thus, he said:

The result is that, if they wish, more than one of the partners, or all of the partners, may apply for probate. However, it is to be anticipated that that will not occur. The provision is also practicable because one only of the partners may apply without the consent of, or renunciation by the other executors.

[10]     The clause that the partnership in this case, Lewis', seek to have substituted does not unfortunately conform with that logic. In seeking the appointment still of

'any two of the partners' only, it preserves the uncertainty as to who is appointed executor and trustee that vitiates the original clause. The expressed wish that two

only act has no part to play. It adds nothing.

[11]     I propose instead to grant the application by substituting a clause, which does conform with Woodhouse J's logic. I direct that the original appointment clause be deleted and that in its place there be the following clause:

I appoint as my executors and trustees the partners at the date of my death in the firm of Lewis', solicitors at Cambridge (in this will called 'my executors') and I express the wish that two and only two of those partners shall prove my will and act initially in its trusts.

P.J. Keane J