Estate of Wood

[2015] NZHC 857

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2014-485-604675 [2015] NZHC 857

IN THE ESTATE OF         CHARMIAN JANE WOOD Deceased

Hearing:	(on the papers)
Counsel:	G Brown-Haysom, in person, Applicant
Judgment:	29 April 2015

JUDGMENT OF HEATH J

This judgment was delivered by me on 29 April 2015 at 2.00pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

BT Law, Auckland

Estate of Charmian Jane Wood [2015] NZHC 857 [29 April 2015]

[1]      The late Ms Charmian Jane Wood died at Auckland on 11 April 2014.  She left a Will, dated 21 March 1995.  The value of the estate is modest, some $26,000 is available for distribution.

[2]      An issue has arisen over the grant of probate.  In appointing an Executor and

Trustee, Ms Wood stated, in her Will:

2.        I APPOINT any principal as at the date of my death in the law form of BRENNAN & BROWN-HAYSOM or its successor to be the Executor and Trustee of this my will (“my Trustee”).

[3]      The application for probate came before Senior Deputy Registrar Bowles. On 1 December 2014, she issued a direction, in these terms:

1.The executor appointed in the will is “any principal at the date of my death in the law firm of Brennan & Brown-Haysom or its successor…”   It would seem that this appointment is void for uncertainty if there is no one person sitting that description.   See Chapter  18  in  Dobbie’s  Probate  and Administration  Practice,  5th edition.

[4]      An application for correction of the Will has been made by Mr Brown-

Haysom, who was the solicitor responsible for preparation of Ms Wood’s Will in

1995.  The application is made in reliance on ss 31 and 32 of the Wills Act 2007 (the Act).  The “correction” sought is to change cl 2 of the Will, with the effect that Mr Brown-Haysom personally be named as the sole Executor and Trustee.  It is said that this will give effect to the late Ms Wood’s wishes.  They are recorded in Mr Brown- Haysom’s supporting affidavit.

[5]      Sections 31 and 32 of the Act provide:

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.

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).

[6]      Mr  Brown-Haysom  deposes  that,  at  the  time  the  Will  was  prepared,  he practised in Papatoetoe under the firm name of Brennan & Brown-Haysom.  As at the date of Ms Wood’s death, the two principals in the successor law firm, BT Law, were Ms Tregenza and himself.  Mr Brown-Haysom contends that he qualifies as a person to whom the will-maker referred in cl 2 of her Will.

[7]      A similar issue came before Asher J, in Re Mansfield.1     After reviewing relevant authorities, the Judge took the view that the Will in that case should be corrected to reflect what the will-maker had plainly intended.  An order was made under s 31(2) of the Act, on the ground set out in s 31(1)(b).2

[8]      The Senior Deputy Registrar seems to have based her decision on the need for extrinsic evidence to identify a qualifying person to appoint as Executor.  Such evidence may be used by a Court, by virtue of s 32 of the Act.3   From the evidence tendered to the Court, I am satisfied that Mr Brown-Haysom was a person within the

class whom Ms Wood  intended to be appointed as Executor and Trustee.   Not

1      Re Mansfield HC Auckland CIV-2008-404-7115, 10 March 2009.

2      Set out at para [5] above.

granting probate to appoint him would, in my view, fail to give effect to her intentions.

[9]      I am satisfied that this is a case in which the Will should be corrected.  The order will reflect Ms Wood’s intention that “any principal” of a successor to the firm then known as Brennan & Brown-Haysom would act as her Executor and Trustee.

[10]     I make an order that cl 2 of the Will4  be corrected to name Mr Brown- Haysom as Executor and Trustee.

[11]     I  refer  the  probate  application  back  to  the  Senior  Deputy  Registrar  to determine in light of this judgment.

P R Heath J

Delivered at 2.00pm on 29 April 2015