Estate of McDonald

[2024] NZHC 3470

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2869

[2024] NZHC 3470

UNDER	section 31 of the Wills Act 2007
IN THE MATTER	of the estate of JANET MCDONALD

Hearing:	On the papers
Judgment:	20 November 2024

JUDGMENT OF GORDON J

This judgment was delivered by me

on 20 November 2024 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:

Websterlaw Ltd, Auckland

Estate of Janet McDonald [2024] NZHC 3470 [20 November 2024]

[1]                 This is an application by Nicholas Smith in his capacity as executor of the will of Janet McDonald for correction of Ms McDonald’s will (Will).

[2]                 Mr Smith applies by way of originating application1 under s 31 of the Wills Act 2007 (Act) on the basis that the Will contains a clerical error.

Background

[3]                 The Will was made on 12 November 2018. Ms McDonald died on 17 March 2024 without leaving any issue.

[4]                 Mr Smith has sworn an affidavit in support of the application. He is one of two directors of Websterlaw Ltd. The executor under cl 2 of the Will is stated to be “one of the directors of Websterlaw Ltd”. Donald Webster, the other director of Websterlaw Ltd has given his written consent to Mr Smith as executor. In that capacity Mr Smith will be applying for probate of the Will.

[5]                 Clause 5 of the Will provides for the division of Ms McDonald’s residuary estate to be divided:

… into one hundred equal parts to be held upon the following trusts, namely:

(i)As to twenty-five (25) of such parts for my sister ETHEL LILIAN RILEY provided she survives me and if she does not then to such of her children namely … as survive me …

(ii)As to twenty-five (25) of such parts for such of the children of my late sister HELEN EDITH TREMEWAN namely … as survive me …

(iii)As to twenty-five (25) of such parts for the children of my late brother ALISTER FALLA MCDONALD namely, … as survives me …

(iv)As to the remaining one (1) of such parts for the children of my late sister DOROTHY EMILY CROCKETT as survive me namely, … as survive me …

[6]                 Ms McDonald had four siblings. Each of those siblings predeceased her. For completeness I note that Ms McDonald refers to her “deceased” siblings in

1      High Court Rules 2016, r 19.2(xa).

sub-cls 5(ii), 5(iii) and 5(iv). In sub-cl 5(i) of the Will, 25 parts were to be distributed to her sister who was alive  at  the  date  of  the  Will  but  who  then  died  before  Ms McDonald. Sub-clause 5(i) provides in that circumstance then the distribution is to be to her sister’s children (similarly to sub-cls 5(ii)–(iv)).

[7]                 Again, for completeness, I note that one of the named children of another of Ms McDonald’s sisters, a niece to Ms McDonald, predeceased Ms McDonald. That niece did not have any children. The distribution will accordingly be made to the eleven beneficiaries named in the Will who are Ms McDonald’s surviving nieces and nephews.

[8]                 The issue, which was discovered after Ms McDonald’s  death,  is  with  sub-cl 5(iv) which reads: “As to the remaining one (1) of such parts”. Mr Smith says that the correct numerical value to make sense of the distribution of the shares should have been written by the drafter of the Will as “as to the remaining twenty-five (25) of such parts”. Mr Smith says this error seems to have been missed by all persons who handled the file.

[9]                 Mr Smith accordingly applies for correction of what he says is a typographical error, under s 31(a) of the Act where a will does not carry out the will-maker’s intentions because it contains a clerical error. He applies for the correction of “As to the remaining one (1) of such parts” to be removed by the Court and replaced with the words “As to the remaining  twenty-five (25)  of such  parts” to  correctly  reflect  Ms McDonald’s intentions.

[10]             Mr Smith says the error does not carry out Ms McDonald’s intentions for the division of her residuary estate. He says her intention under cl 5 was that 100 parts would be distributed between the beneficiaries, but sub-cls 5(i) to (v) only add up to 76 shares of her residuary estate due to the typographical error.

[11]             All the beneficiaries named in the Will who are alive have consented to the application. Their written consents are annexed to Mr Smith’s affidavit.

Analysis

[12]             I accept that Ms McDonald’s intention under cl 5 was that 100 parts would be distributed between the beneficiaries. Mr Smith makes the point that Ms McDonald would not have intended to only distribute 76 parts between the beneficiaries and to leave the remaining 24 parts intestate. In other words, Ms McDonald would have intended that all 100 parts be distributed in cl 5.

[13]             Support for this conclusion is apparent first in sub-cl 5(iv), which contains the error, where there is a reference to the “remaining” parts that are to be distributed after the first three 25 parts were already distributed. Mathematically, the “remaining” parts would be 25 to make the number of parts add up to 100 such parts.

[14]             There is further evidence that supports the proposition that Ms McDonald’s intention was to divide 100 parts into quarters. That support comes from her previous will dated 16 March 2011 (2011 Will). In the 2011 Will the residue was divided into 16 equal shares and four shares were given to named beneficiaries. There was no intention in the 2011 Will for the residuary estate to be left partially intestate. The only difference between the two wills is that 16 parts were to be equally divided between four in the former and for 100 parts to be divided equally between four in the latter. This division of the whole of the residuary estate into four quarters in the 2011 Will is consistent with Ms McDonald’s intention when making the Will.

[15]             For all the above reasons I accept the Will does not carry out Ms McDonald’s intentions because it contains a clerical error in sub-cl 5(iv). I will make an order as sought.

[16]             I address a separate point. Mr Smith makes the application without notice. I accept that it is in the interests of justice for the application to proceed without notice for  the  following  reasons:  all  the  affected  parties  (the  surviving  children  of  Ms McDonald’s deceased siblings) have consented to the application; the application relates to a routine matter; and there are no other parties affected by the application.

Result and orders

[17]             The Will of the late Janet McDonald dated 12 November 2018 contains a clerical error.

[18]             The application by Nicholas Smith, Solicitor, to correct the clerical error brought as an originating application under r 19.2(xa) of the High Court Rules 2016, may proceed without notice.

[19]             Sub-clause 5(iv) of the Will is corrected under s 31(1)(a) of the Wills Act 2007 by:

(a)deleting the words “As to the remaining one (1) of such parts …” (deleted words); and

(b)replacing the deleted words with “As to the remaining twenty-five (25) of such parts …”.

Gordon J