Estate of Williamson

[2022] NZHC 1397

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2263 [2022] NZHC 1397

IN THE MATTER

of the Wills Act 2007

AND IN THE MATTER

of the Estate of DAVID ARTHUR WILLIAMSON late of Taupo, Retired, Deceased

AND IN THE MATTER

of an application by JOHN GRAHAM TURRALL of Auckland, Solicitor, for an

order correcting a Will to carry out the Will- maker’s intentions

Hearing:	17 March 2022
Appearances:	A Gilchrist for the Applicant
Judgment:	14 June 2022

JUDGMENT OF GAULT J

This judgment was delivered by me on 14 June 2022 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr A Gilchrist, Barrister, Auckland

Mr J G Turrall (instructing solicitor), Auckland

RE ESTATE OF DAVID ARTHUR WILLIAMSON [2022] NZHC 1397 [14 June 2022]

[1]                  Mr Turrall seeks an order by way of originating application correcting the will of the late Mr Williamson to carry out his intentions and avoid a partial intestacy.

[2]                  Mr Williamson’s three adult children have been served and have taken no steps. Accordingly, the application proceeded by way of formal proof.

Factual background

[3]Mr Williamson’s last will was dated 25 January 2017 (the Will).

[4]                  Mr Turrall, a solicitor, acted for  Mr  Williamson  and  prepared  the  Will. Mr Turrall is appointed as Mr Williamson’s executor and trustee in the Will.

[5]Mr Williamson died on 24 September 2021.

[6]                  After Mr Williamson’s death, Mr Turrall perused the Will and realised that, through an error in his drafting, the Will did not record what Mr Williamson had intended and what Mr Turrall had been instructed by him. Clause 8 of the Will states:

8.I GIVE DEVISE AND BEQUEATH  all real and personal property of whatsoever nature and wheresoever situate which I may be possessed of or entitled to or over which I have any disposing power at the time of my death not hereinbefore otherwise disposed of and any chattels owned by me and any funds (hereinafter called my “residuary estate”) to my Trustee upon trust to convert the same to cash and to invest the same and pay the net annual income arising therefrom to my wife ELIZABETH ANNE WILLIAMSON until her death but should she predecease me to pay the same to my daughter Susan and in the event of Susan predeceasing me to pay the same to the children of Susan who survive me and if more than one in equal shares.

[7]                  Mrs  Elizabeth  Anne  Williamson  (Elizabeth)   survived   the   death   of   Mr Williamson. So did his daughter Susan. Mr Turrall considered that the effect of clause 8 is that the Will only provides that the residuary estate is to be paid to Susan if Elizabeth predeceased Mr Williamson, and therefore the Will creates a partial intestacy at the point of Elizabeth’s death as the residuary estate would not otherwise be dealt with in the Will.

[8]The residuary estate is in the region of $100,000.

The law

[9]                  The relevant provisions of the Wills Act 2007, and their context, were set out by the Court of Appeal in Wilson v Davidson:1

[10] Sections 31 and 32 of the Wills Act 2007 (the Act) now apply when there are interpretation issues with a will or a will does not reflect a will-maker's intentions. The jurisdiction to apply the sections is given to the High Court. These two sections are based on common law jurisprudence as to the interpretation and rectification of wills and earlier similar reforms in Australia and the United Kingdom.2 The legal position in New Zealand prior to the Act was summarised by Fisher J in his often quoted statement in Re Jensen:3

The overriding objective is to give effect to the intentions of the testator. All canons of construction must be subservient to that end. The testator's intentions are to be gleaned from an objective appraisal of the testamentary documents viewed as a whole but in cases of doubt the wording is to be interpreted in the context of those facts which must have been in the contemplation of the testator.

[11]               As this passage indicates, prior to the passing of the Act, there was a willingness to interpret the provisions of a will against the factual context in which the will was drafted and executed. While the words of the will were central, evidence was admissible that could shed light on the view from the will-maker's “armchair”.4 Consistent with this, the purpose of the reforms was to give primacy to the will-maker's intentions. This was explained by the Hon Clayton Cosgrove MP in moving that the Wills Bill 2006 be read for the first time:5

Wills are of practical day-to-day significance for all New Zealanders. A will is an instrument that expresses a person's wishes after he or she dies, and enables that person to take care of his or her loved ones and property and assets. The proposed reforms will improve the legal framework for will-making. They will make the law easier for people to understand, and reduce the risk of a will-maker's wishes being defeated by a badly drafted or incorrectly executed will, and will also allow better effect to be given to a will-maker's intentions.

[12] Section 32 can be seen as a statutory reflection of the armchair principle.6 It provides:

1      Wilson v Davidson [2017] NZCA 468.

2      Law Commission Succession Law Wills Reforms (NZLC MP2, 1996) at ch 9; and Law Commission Succession Law: A Succession (Wills) Act (NZLC R 41, 1997) at 4.

3      Re Jensen [1992] 2 NZLR 506 (HC) at 510.

4      Perrin v Morgan [1943] AC 399 (PC) at 420; and Re Beckbessinger [1993] 2 NZLR 362 (HC) at 367.

5      (10 October 2006) 634 NZPD 5557.

6      Law Commission Succession Law Wills Reforms, above n 2, at [235].

32 External evidence

(1)This section applies when words used in a will make the will, or part of it,—

(a)meaningless; or

(b)ambiguous on its face; or

(c)uncertain on its face; or

(d)ambiguous   in    the   light    of   the    surrounding circumstances; or

(e)uncertain   in    the    light    of    the    surrounding circumstances.

(2)The High Court may use external evidence to interpret the words in the will that make the will or part meaningless, ambiguous, or uncertain.

(3)External evidence includes evidence of the will-maker's testamentary intentions.

(4)The court may not use the will-maker's testamentary intentions as surrounding circumstances under subsection (1)(d) or (e).

[13] Prior to the modernising statutes over the last 50 years in the United Kingdom and Australia, there was no statutory power to rectify a will. The traditional position was that a Court could not rectify a will.7 However, that common law position was increasingly doubted and criticised.8 The position was settled when the United Kingdom and Australia enacted sections that gave the courts the power to correct errors in a will.9 Section 31 of the Act now gives the New Zealand High Court this power. It 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      See for example Re Reynette-James [1976] 1 WLR 161.

8      See Re Jensen, above n 3, at 511–512, in which Fisher J stated that the courts should and do have the power to rectify a will.

9 For the United Kingdom see Administration of Justice Act 1982 (UK), s 20. For Australia see Wills Act 1968 (ACT), s 12A; Succession Act 2006 (NSW), s 27; Wills Act 2000 (NT), s 27; Succession Act 1981 (Qld), s 33; Wills Act 1936 (SA), s 25AA; Wills Act 2008 (Tas), s 42; Wills Act 1997 (Vic), s 31; and Wills Act 1970 (WA), s 50.

Discussion

[10] Mr Gilchrist, for Mr Turrall, submitted that the Court may make an order under s 31 on the basis that I can be satisfied the Will does not give effect to Mr Williamson’s instructions. He relied on the direct evidence of Mr Turrall. Alternatively, Mr Gilchrist submitted that I could use s 32 but he acknowledged it does not add much in this case.

[11] Although only raised as an alternative, I deal first with s 32 since logically the first task is to interpret the Will. Initially, that involves considering the plain meaning, followed by consideration of external evidence where s 32 applies.

[12]   The plain meaning is complicated by the fact that, although clause 8 defines the “residuary estate”, that term is not subsequently used. Instead, the clause subsequently refers to the “same”. Even so, I accept the plain meaning is that the “same” refers to the residuary estate including when “same” is subsequently used in relation to Susan after reference to Elizabeth’s income interest. In any event, I agree with Mr Gilchrist that the plain meaning of clause 8 is that the Will does not deal with what is to occur to the residuary estate upon the death of Elizabeth. It therefore creates a partial intestacy.

[13] I do not consider that resort to s 32 provides a solution, even in the alternative. Clause 8 is not meaningless under s 32(1)(a). Section 32(4) precludes the Court from using Mr Turrall’s evidence of Mr Williamson’s testamentary intention as surrounding circumstances under s 32(1)(d) or (e). For the purposes of identifying an ambiguity or uncertainty on the face of the Will under s 32(1)(b) or (c), I can have regard to clause 3 which declares that Mr Williamson has not left any of his estate to his two sons because of earlier support they have received. While it may well be that the inconsistency between clause 3 and the effect of clause 8 as drafted gives rise to an ambiguity or uncertainty on the face of the Will under s 32(1)(b) or (c), it is not one that Mr Gilchrist suggested can be addressed by way of an alternative interpretation of clause 8. Even applying s 32, the words of the Will cannot effect a remedy that reflects Mr Williamson’s intentions. A correction would be required.

[14] Turning to s 31, it is not suggested there was a clerical error under s 31(1)(a). The issue is whether s 31(1)(b) applies. I accept Mr Turrall’s evidence that the instructions he received for the Will were for it to say that on the death of Elizabeth the capital of the residuary estate was to be paid to Susan; that is, Elizabeth was to have use of the income during her lifetime and that after her death the capital sum would go to Susan. The absence of a file note does not cause me to doubt that evidence. Leaving the residuary estate to Susan is consistent with Mr Williamson’s reason for not leaving any of his estate to his two sons, as recorded in clause 3 of the Will. Also, a partial intestacy would be inconsistent with clause 3 since, under s 77 of the Administration Act 1969, the funds that are part of the partial intestacy would be split equally between Mr Williamson’s three children, including the two sons. I accept that a partial intestacy was contrary to Mr Williamson’s intention.

[15]   Mr Turrall’s letter to Mr Williamson dated 17 January 2017, eight days before the Will was executed, seeking instructions in relation to a change from his earlier 2015 will is also consistent with Mr Turrall’s evidence – at least in the sense that it raises the issue of who would benefit from any surplus capital. That earlier will had provided that any capital Mr Williamson owned should be paid to Elizabeth and only paid to Susan if Elizabeth died before him.

[16] Accordingly, I am satisfied in terms of s 31(1)(b) that the Will does not carry out the will-maker’s intentions because it does not give effect to his instructions.

[17] In the circumstances, I consider the Court should make an order under s 31 correcting the Will to carry out Mr Williamson’s intentions.

[18] The final issue is the form of the correction under s 31. As Mr Gilchrist acknowledged, the draft order involves a degree of hindsight by omitting the possibility that Elizabeth or Susan might predecease Mr Williamson. At the time the Will was executed, it was not known whether Elizabeth or Susan would survive Mr Williamson. In correcting the Will, the drafting needs to be able to address either possibility. I reserve leave for counsel to file a memorandum in relation to the form of the correction ordered if necessary.

Result

[19]   I make an order that the Will of David Arthur Williamson dated 25 January 2017 be corrected so as to carry out the will-maker’s intentions by replacing paragraph 8 as follows:

8.I GIVE DEVISE AND BEQUEATH all real and personal property  of whatsoever nature and wheresoever situate which I may be possessed of or entitled to or over which I have any disposing power at the time of my death not hereinbefore otherwise disposed of and any chattels owned by me and any funds (hereinafter called my “residuary estate”) to my Trustee upon trust to convert the residuary estate to cash and to invest the residuary estate and pay the net annual income arising therefrom to my wife ELIZABETH ANNE WILLIAMSON until her death and upon her death, or should she predecease me, pay the residuary estate to my daughter Susan, and in the event of Susan predeceasing me or my wife, to pay the residuary estate upon my wife’s death to the children of Susan who survive me and if more than one in equal shares.

Gault J