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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 1397
Decision Date: 14 June 2022

CaseChat Overview and Summary

In the Estate of Williamson, the High Court of New Zealand was tasked with correcting the will of the late David Arthur Williamson to align with his intentions. The will, drafted by solicitor John Graham Turrall, contained an error that led to a potential partial intestacy upon the death of Williamson's wife, Elizabeth Anne Williamson. The primary issue before the court was whether the High Court could rectify the will under the Wills Act 2007 to reflect Williamson's true intentions. The court considered both sections 31 and 32 of the Act, which allow for the correction of wills that do not carry out the will-maker's intentions and the interpretation of ambiguous or uncertain will provisions, respectively.

Gault J determined that the plain meaning of the will created a partial intestacy, as it did not address what should happen to the residuary estate upon Elizabeth's death. The court found that section 32 did not provide a suitable remedy, as it could not use Turrall's evidence of Williamson's testamentary intentions to resolve the ambiguity. The court concluded that section 31 was applicable, as the will did not give effect to Williamson's instructions. Turrall's evidence and a letter to Williamson indicated that Williamson intended for the capital of the residuary estate to be paid to Susan upon Elizabeth's death. The court thus ordered the will to be corrected to reflect Williamson's intentions, ensuring that the residuary estate would be paid to Susan upon Elizabeth's death or Williamson's death if Elizabeth predeceased him.

The final orders of the court involved correcting the will by replacing the problematic clause with a new provision that accurately reflected Williamson's intentions regarding the distribution of his residuary estate. The court also reserved leave for counsel to file a memorandum on the form of the correction ordered, if necessary, to address any potential issues arising from the hindsight involved in drafting the corrected will.

Orders