Estate of Palmer

[2024] NZHC 1034

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-208

[2024] NZHC 1034

UNDER

the Wills Act 2007

IN THE MATTER OF

the Estate of Peggy Charlotte Palmer

BETWEEN

BRUCE RICHARD PALMER, NEIL DOUGLAS PALMER AND JOANNE ELIZABETH PALMER

Applicants

Hearing:	On the papers
Counsel:	C J Standen for Applicants
Judgment:	1 May 2024

JUDGMENT OF McHERRON J

[1]                 This is a without notice originating application for an order under s 31 of the Wills Act 2007 to correct a will. I allow the application for the following reasons.

Background

[2]                 Peggy Charlotte Palmer died on 12 July 2023. Her last will is dated 22 May 2013. At cl 6, it contains an obvious clerical error. That clause provides for the appointment of Ms Palmer’s children, Bruce Palmer, Neil Palmer and Joanne Palmer, the applicants in the present application, as executors and trustees, if Peggy Palmer’s spouse has predeceased her.

[3]                 Unfortunately, the will names “Peggy Charlotte Palmer” as the “said spouse”, for the purposes of cl 6.

RE ESTATE OF PEGGY CHARLOTTE PALMER [2024] NZHC 1034 [1 May 2024]

[4]                 According to Caleb Standen of Keam Standen, the law firm which held the will of Peggy Palmer, there is a simple explanation for the error. The deceased and her husband, Peter Quinton Palmer had executed new wills on the same day in the presence of the same witnesses. Their wills were to have been a mirror of each other’s in regard to the ultimate residuary beneficiaries. However, when the template used for Peter Palmer’s will was edited to draft Peggy Palmer’s will, cl 6 was inadvertently left unchanged.

[5]                 Mr Standen deposes that he became aware of the drafting error after filing an application for a grant of probate to the substituted executors (the applicants). Registrar John Earles issued a minute on 14 February 2024 pointing out that the error in cl 6 of the will renders  the  directions  that  follow  in  that  clause  inoperative. Mr Earles directed that an application for the will to be corrected would be necessary.

Assessment

1. Section 31 of the Wills Act provides:

31     Correction

(1)This section applies when the High Court is satisfied that a will does not carry out the will-maker’s intentions because it—

(a)contains a clerical error; or

(b)      does not give effect to the will-maker’s instructions.

(2)The court may make an order correcting the will to carry out the will- maker’s intentions.

[7]                 As is clear from the text of s 31 the underlying rationale of the correction power is to carry out the will-maker’s intentions.

[8]                 Mirror wills made by two people at the same time are known to lend themselves to clerical slips of this nature.1 It is also common for the Court to exercise the power of correction under s 31 where the will-maker names the wrong person.2

1      L Breach, Neville’s Law of Trusts, Wills and Administration (Lexis Nexis NZ, Wellington, 2023) at [17.4.1(b)], citing Re Anderson (Deceased) HC Timaru CIV-2010-476-340, 2 August 2010.

2      At [17.4.1(c)], citing Re McKeay [2012] NZHC 534.

[9]                 In the present case, it is clear from the will on its face that it does not give effect to Peggy Palmer’s intentions. That is evident from:

(a)The fact that Peter Quinton Palmer is named as Peggy’s spouse in cls 2, 3, 4, and 5(b).

(b)In cl 6, there is a reference to “my said spouse”. The inclusion of the word “said” is a clear indication that the spouse referred to is the same person as has previously been referred to in the earlier clauses, namely Peter Quinton Palmer.

(c)The inclusion of the testator’s own name in cl 6 renders the clause nonsensical. It is necessary for the correction to be made in order to give the clause operative effect, thereby giving effect to the testator’s intentions.

[10]I am therefore satisfied that:

(a)the correction that is sought is necessary to ensure that the will carries out Peggy Palmer’s intentions;

(b)it was appropriate for the applicants to make this application without notice.3 The application affects only the applicants, and it relates to a routine matter. Moreover, the application contained the necessary certification prescribed in form G32 and was filed with a memorandum setting out the matters required by r 7.23(3) of the High Court Rules.

[11]Accordingly, I allow the application to correct Peggy Palmer’s will.

3      High Court Rules 2016, r 7.23.

Result

[12]Leave is granted to make the application without notice.

[13]             An order is made  correcting  the  will  of  Peggy  Charlotte  Palmer  dated  22 May 2013 changing the name of “Peggy Charlotte Palmer” where it appears in cl 6 to “Peter Quinton Palmer”.

McHerron J

Solicitors:
Keam Standen, Tauranga for Applicants