Evans

[2023] NZHC 3516

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-535

[2023] NZHC 3516

UNDER

the Wills Act 2007

IN THE MATTER

of the will of the late JULIETTE MARGARET EVANS

AND IN THE MATTER

of an application of CHRISTOPHER JOHN EVANS for correction or interpretation of

the will

Hearing:	(Determined on the papers)
Counsel:	B R Fraser and D J C Russ for Applicant
Judgment:	5 December 2023

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 5 December 2023 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE EVANS [2023] NZHC 3516 [5 December 2023]

Introduction

[1]    Christopher Evans (Christopher) seeks an order correcting or interpreting a clause in the will of his late wife, Juliette Margaret Evans (Juliette), who died in February 2023.

[2]    All parties with an interest in the order sought have been served – none have taken any steps. Nonetheless, the Court must still be satisfied the orders sought should be made.

Christopher and Juliette

[3]    Christopher and Juliette married in 1991. Christopher had been married before and had two daughters from the earlier marriage. Christopher and Juliette had one son.

[4]    Juliette had received a legacy from her father which she wanted to keep separate and pass on to the son she had with Christopher. That legacy was paid into  a trust of which Juliette and Christopher’s son is the sole beneficiary. Other than the separate treatment of Juliette’s father’s legacy, Christopher and Juliette shared their property equally.

Juliette’s will

[5]    Juliette’s last will is dated 18 June 2009 (the will). Christopher is the sole executor  and  trustee  of  Juliette’s  estate  and   probate  was   granted  to  him  on   9 August 2023.

[6]    The problem that has arisen is that cl 7.2 of Juliette’s will gifts the residue of her estate to “the Trust”. While the will refers to two trusts — the CJ Trust and the Glencullen Trust — the residue clause does not specify which trust was intended to receive the residue or whether both trusts were intended to benefit.

[7]    Christopher and Juliette had mirror wills including those made in 2009 and prior to that in 2005.

The CJ Trust

[8]    Christopher explains the CJ Trust was an investment trust which held rental properties. It was created on accounting and legal advice to avoid tainting, from a tax perspective, the Glencullen Trust. The couple’s son and Christopher’s children are discretionary beneficiaries of the CJ Trust and Christopher the final beneficiary. However, the CJ Trust no longer holds any assets. It is intended that it be wound up.

[9]Christopher was sole trustee and final beneficiary of the CJ Trust.

The Glencullen Trust

[10]   Christopher explains that the Glencullen Trust is what would more typically be described as a family trust. The Glencullen Trust owned the couple’s family home. It owns 80 per cent of the shares in a property development company from which Christopher and Juliette derived their income. However, the Glencullen Trust at this point holds no assets, other than what it will receive from the residue of Juliette’s estate should the Court make the order sought.

[11]   The final beneficiaries of the Glencullen Trust were Juliette and Christopher along with their children.

The couple’s will intentions

[12]   Both trusts are referred to in the 2005 and 2009 wills because the wills needed to address the power of appointment of trustees for each of the trusts and in order to forgive any indebtedness owed by the two trusts to Christopher and Juliette.

[13]   Christopher says it was never intended by Juliette and himself to leave their estates to the CJ Trust.

[14]   Because of the identity of different beneficiaries under the two trusts, Christopher as final beneficiary of the CJ Trust stands to benefit if the trust referred to in the residue clause of Juliette’s will was the CJ Trust — as explained, that is not the position he adopts.

[15]   Christopher says he and Juliette had discussed what they wanted to happen to their property when either of them died. It was that the residue of their respective estates would pass to the Glencullen Trust. Christopher points out, that given his will also only refers to “the Trust” when dealing with the residue, if he had died first, then a gift of his estate to the CJ Trust would have disadvantaged Juliette as she was not a beneficiary of the CJ Trust.

[16]   The law firm that acted for Juliette is not able to cast any further light on how the wills came to refer only to “the Trust”.

Power to correct a will

[17]Section 31 of the Wills Act 2007 (the 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.

[18]   Counsel for Christopher submits that omitting the name of the intended trust, which is the subject of a gift of the residue, is a clerical error. When considering whether to correct a will, s 32 of the Act allows the Court to use external evidence to interpret the words in a will that make the will or part of the will, meaningless, ambiguous or uncertain.1

[19]   The Court should exercise its power to correct pursuant to s 31(2) of the Act where the evidence establishes that the will, as drafted, did not give effect to the will- maker’s instructions. In Re Estate of Kamo,2 it was held that s 31 of the Wills Act 2007 was the appropriate provision under which to correct a will in the event words

1      Wills Act 2007, s 32(2).

2      Re Estate of Kamo [2020] NZHC 474.

had been omitted. Similarly, the Court of Appeal has stated in relation to errors that cut across a will-maker’s intentions:3

A clerical error that a party seeks to correct will generally, as well as being an error, not give effect to the will-maker’s intentions, and thus the correction of clerical errors will generally  be available on the grounds set  out in both      s 31(1)(a) and (b).

Discussion

[20]   It is readily apparent that the residue clause in Juliette’s will both represents  a clerical error and did not represent Juliette’s intention. It is also probable that the clause did not give effect to Juliette’s instructions. Juliette cannot have intended to ambiguously refer to “the Trust” without defining which trust. The failure to specify one particular trust in the residue clause was a drafting error.

[21]   Christopher’s evidence is clear. It is significantly against his personal interest to depose that the couple’s common intention was to gift residue to the CJ Trust. There is no reason to doubt his evidence.

[22]   It is probable that Juliette intended her residue to go to what Christopher describes as being their normal family trust as opposed to the CJ Trust.

[23]   On that basis, it is appropriate that there is an order under s 31 of the Act to correct the reference in cl 7.2 to refer to the Glencullen Trust.

Order

[24]   There is an order that the last will of Juliette Margaret Evans (dated 18 June 2009) be corrected under s 31 of the Act so that cl 7.2 will now read:

7.2Transfer Residue: to pay and transfer the residue of my estate to the trustees at that time of the Glencullen Trust.

3      Wilson v Davidson [2017] NZCA 468 at [33].

Costs

[25]There is no order as to costs and disbursements.

Osborne J

Solicitors:

Fletcher Vautier Moore, Nelson (for Applicant)

Copy to counsel:
D J C Russ, Barrister, Christchurch