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Haldane v Haldane

Haldane v Haldane

Case [2015] NZHC 352 4 March 2015

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000834 [2015] NZHC 352

IN THE MATTER
OF THE ESTATE OF JANET ANN

HALDANE

BETWEEN

KENNETH NORMAN HALDANE AND BRETT ALLAN HALDANE

Plaintiffs

AND

KENNETH NORMAN HALDANE AND BRETT ALLAN HALDANE

Defendants

Submissions: 30 January 2015

Counsel:

M J Wallace and B Palliser for Plaintiffs/Defendants

Judgment:

4 March 2015

JUDGMENT OF GENDALL J (Dealt with on the papers)

Introduction

[1] Janet Ann Haldane (the deceased) died at Christchurch on 26 June 2014. The

parties to this proceeding are the executors and trustees of the deceased’s will dated

2 December 1996. They seek orders amending the will of the deceased pursuant to s 31 of the Wills Act 2007, so as to correct errors in her will and to give effect to what they say to be her true intentions.

[2] By a minute dated 20 November 2014 Associate Judge Osborne in this Court ordered that the proceeding and relevant documentation be served upon the defendants along with the deceased’s two other children, Kylie Anne Gordon (nee Haldane) and Kurt Norman Haldane. Service was duly effected. Each party served signed a document which included, inter alia, a paragraph which read “I consent to
the orders sought in the statement of claim”.

HALDANE v HALDANE [2015] NZHC 352 [4 March 2015]

[3] The plaintiffs now effectively seek judgment by default, there having been no opposition to the relief sought in this proceeding.

What this proceeding seeks

[4] Two substantive changes in the deceased’s will are sought. The first is to correct the spelling of the deceased’s middle name, from “Anne” to “Ann”. The second set of changes are said to give effect to the intention of the deceased by correcting certain errors which are said to be obvious.

[5] The will as it currently stands, relevantly provides:

6.I GIVE DEVISE AND BEQUEATH all the rest and residue of my estate… into money with power in her absolute discretion … such time as she shall think fit …

(a) To pay the net annual income arising therefrom to my wife JANET ANNE HALDANE so long as she remains my widow

(b) After the death or remarriage of my said wife to hold the capital as well as the income thereof for such of my children as shall be living at my death and if more than one in equal shares as tenants in common PROVIDED HOWEVER that in the event…

11. I EMPOWER my Trustee JANET ANNE HALDANE
notwithstanding her office to purchase my estate…

12.I EMPOWER my Trustee JANET ANNE HALDANE to bid on her own behalf

[6] Quite plainly it seems odd and wrong that the deceased would, by her will, seek to dispose of her property to herself. Clearly it appears from material before the Court that, in preparing mirror wills for the deceased and her husband at the time, the first named plaintiff, an error was made in the deceased’s will by transposing two pages in the relevant part of…

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.

Continue reading Haldane v Haldane

Details

AGLC: Haldane v Haldane [2015] NZHC 352
Case: [2015] NZHC 352
Decision Date: 4 March 2015

CaseChat Overview and Summary

The proceeding Haldane v Haldane was brought before the High Court of New Zealand in Christchurch. The plaintiffs, Kenneth Norman Haldane and Brett Allan Haldane, who are the executors and trustees of the deceased's will, sought orders amending the will of Janet Ann Haldane, who died on 26 June 2014. The amendments sought to correct errors in her will and to give effect to what they say to be her true intentions. The primary issues were whether the errors in the will were clerical in nature and whether they could be corrected under s 31 of the Wills Act 2007. The court held that the corrections sought in the plaintiffs' statement of claim were to be made. The court ordered that all references in the deceased’s 2 December 1996 will to the middle name of the deceased were to be altered from “Anne” to “Ann”. Clauses 6(a) and 6(b) of the deceased’s 6 December 1996 will were to be altered so that they referred to the deceased’s husband instead of the deceased herself. The first nine words of clause 6(b) and the first 10 words of clause 11 were also to be altered accordingly. The first 13 words of clause 12 were to be deleted and substituted with new words. Probate of the deceased’s 2 December 1996 will, as corrected, was to be granted to the plaintiffs. The costs and disbursements of bringing this proceeding were to be paid out of the estate of the deceased.

Orders