Estate of Johnstone

[2014] NZHC 2266

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2014-485-7172 [2014] NZHC 2266

IN THE ESTATE OF         AVERIL JUNE JOHNSTONE formerly of

Geraldine, retired, late of Timaru

Deceased

In Chambers:	On papers
Judgment:	18 September 2014

JUDGMENT OF THE HON JUSTICE KÓS

[1]      Robert and Gael Johnstone apply under s 31 of the Wills Act 2007 to correct a clerical error in the will of their late mother, Averil Johnstone.  Her will is dated

25 June 2002.  Mrs Johnstone died on 16 May 2014.

[2]      Clause 3(b) of Mrs Johnstone’s will provides for the residue of her estate to go to her husband, John Johnstone.  However Mr Johnstone died on 10 March 2012.

[3]      In the event of Mr Johnstone pre-deceasing Mrs Johnstone, cl 3(c) of her will provides:

If my wife dies before me to divide the residue equally between my children ROBERT GRAEME JOHNSTONE and GAEL ANNE JOHNSTONE equally if both are living at my death or if only one is living at my death then to that one.  However if one or both of them die before me leaving a child or children living at my death then that child will take or those children will take equally the share which the parent would otherwise have taken under this clause.

[4]      In his affidavit Mrs Johnstone’s solicitor, Mr Dorman of Timaru, explains the

obvious: the reference to “my wife” is a clerical error.  The reference should have

been to “my husband”.  That is, the husband referred to in cl 3(b).

ESTATE OF AVERIL JUNE JOHNSTONE [2014] NZHC 2266 [18 September 2014]

[5]      I am satisfied for the purposes of s 31(1) that this correction is necessary to correct a clerical error in the will, in order to carry out Mrs Johnstone’s testamentary intention.

[6]      There   will   be   an   order   amending   the   word   “wife”   in   cl   3(c)   of

Mrs Johnstone’s will, to “husband”.

Stephen Kós J

Solicitors:

Gresson Dorman & Co, Timaru