Estate of Williamson

[2017] NZHC 993

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2017-485-413 [2017] NZHC 993

IN THE MATTER	of section 31 of the Wills Act 2007
AND IN THE MATTER	of the ESTATE OF BRIAN MAXWELL WILLIAMSON of Tokorua
HEATHER MARGARET WILLIAMSON Applicant

On the papers
Counsel:	R W OʼConnor for Applicant
Judgment:	16 May 2017

JUDGMENT OF THOMAS J

[1]      Brian Maxwell Williamson died on or about 28 October 2016.  He made a will on 24 February 2012 (the Will).  The Will contains an obvious error which his wife, Heather Williamson, who is the sole executor of the Will, applies without notice to have corrected.

[2]      The application is supported by an affidavit from Mrs Williamson, as well as an affidavit from the legal executive who drafted the Will.

[3]      On 30 June 2004, Mr and Mrs Williamson each made a will which mirrored the provisions in the other’s will.  They each appointed the other the sole executor and trustee and left the whole of their estate to the other.  The wills provided that, if Mr or Mrs Williamson, as the case might be, did not survive the other, then the estate

passed to their three children in equal shares.

ESTATE WILLIAMSON [2017] NZHC 993 [16 May 2017]

[4]      One of the children of Mr and Mrs Williamson died in 2009.  Mr and Mrs Williamson then decided to make new wills, Mrs Williamson says in exactly the same terms  as the 2004 wills except excluding their deceased  son.   They both executed the new wills on 24 February 2012.

[5]      The legal executive who prepared the wills deposes that mirror wills were intended.   However, an error arose in the Will as a result of a clerical error.  The crucial provision reads as follows:

2.        SHOULD  my  wife  HEATHER  MARGARET WILLIAMSON  be alive at the date of my death then I APPOINT my husband the sole executor and trustee of this my Will AND I GIVE the whole of my estate both real and personal of whatsoever nature or kind and wheresoever situate to my husband absolutely.

[6]      The effect of clause 2 of the Will is to render the Will a nullity because it appoints Mr Williamson’s “husband” as executor and leaves the whole of the estate to his “husband”.  Clause 3 of the Will is operative only if Mrs Williamson does not survive Mr Williamson.  It is obvious reference in clause 2 to “my husband” should have been to “my wife”.

[7]      The two remaining children of Mr and Mrs Williamson have both consented to an order correcting the clerical error in the Will.

Decision

[8]      I am satisfied it is appropriate in the circumstances to grant leave for the application to be made without notice to any other person.

[9]      I am also satisfied that the document dated 24 February 2012 appears to be a will, and it came into existence in New Zealand.   I am satisfied the Will does not carry out Mr Williamson’s intentions because it contains a clerical error and does not give effect to Mr Williamson’s instructions.

[10]     For these reasons, the application is granted and I make an order pursuant to s 31(2) of the Wills Act 2007 correcting the Will so as to carry out Mr Williamson’s instructions by correcting clause 2 of the Will to read:

2.        SHOULD  my  wife  HEATHER  MARGARET WILLIAMSON  be alive at the date of my death then I APPOINT my wife the sole executor and trustee of this my Will AND I GIVE the whole of my estate both real and personal of whatsoever nature or kind and wheresoever situate to my wife absolutely.

Thomas J

Solicitors:

Hassall Gordon O’Connor & Cameron, Tokorua for Applicant