Harris
[2020] NZHC 2640
•8 October 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-000484
[2020] NZHC 2640
UNDER the Wills Act 2007 IN THE ESTATE OF
Ronald William Harris
BETWEEN
DAWN ELIZABETH HARRIS
Applicant
Hearing: On the papers Appearances:
M W Neville for Applicant
Judgment:
8 October 2020
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 8 October 2020 at 11.00 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: 8 October 2020
[1] This is an application by Dawn Elizabeth Harris for an order under s 31 of the Wills Act 2007 to correct the will of her late husband, Ronald William Harris.
[2] The applicant also applies to have the application dealt with without notice to any other person.
RE HARRIS [2020] NZHC 2640 [8 October 2020]
[3] I am satisfied that all persons who would be affected by the making of the order, being the applicant and the couple’s only surviving child, Michelle Kay Harris Clyne, consent to the order sought. For these reasons, I do not consider that service on any other person is necessary and I am satisfied that the interests of justice require the application to be determined without notice under r 7.46 of the High Court Rules 2016.
[4] The will of the deceased, Mr Harris, was prepared by his solicitor, Paul Jarman, and was executed on 11 August 2006.
[5] Mr Jarman states in his affidavit that there is a drafting error in the will. Clause 3.2 of the will provides a life interest for Mrs Harris in Mr Harris’s share in their principal residence, with a gift over to the residue at the end of the life interest. Clause 3.3 of the will transfers the entire residue of Mr Harris’s estate, which includes his half share in the principal place of residence, to Mrs Harris. Mr Jarman says this has the effect of making the life interest meaningless.
[6] Mr Jarman attests that Mr Harris and his wife deliberately changed the ownership of their principal residence from joint tenants to tenants in common in equal shares. This was to enable the benefit of the life interest in the testator’s half share, upon its expiry, to be transferred to their children. In this case, the error means that the life tenant receives the benefit of the life interest on expiry, by virtue of being the residual beneficiary, which was not intended.
[7] The rectification sought to amend the error is that, at the end of cl 3.2 of the will, the words “the residence and contents or proceeds of sale shall fall into and form part of my residuary estate” should be replaced with “the residue and contents or proceeds of sale shall be transferred to my children in equal shares”.
[8] The application to correct the will relies on both limbs of s 31, that is to say, the grounds are:
(a)that a clerical error was made in the drafting of the will; and
(b)that as it reads the will does not give effect to the will-maker’s instructions.
[9] As discussed in the memorandum of counsel which accompanied the application, this case is on all fours with the case in Re Robertson.1 In Robertson, a mistake of identical effect was sought to be rectified by ensuring the life interest in a property went to the beneficiaries other than the holder of the life interest. The Court granted the application under s 31.
[10] In this case, I am satisfied the evidence of the applicant, Mrs Harris, as to the testator’s intentions, along with the supporting material provided in Mr Jarman’s affidavit, demonstrate that the testator intended the life interest in the residence to be treated differently from the balance of the estate. I therefore accept that Mr Harris intended that on his wife’s death or remarriage, his interest in a half share of the couple’s residence should go to his child or children. I am therefore satisfied there has been a drafting error and as currently worded, the will does not give effect to the will-maker’s intentions.
[11] For these reasons, I am satisfied that s 31 applies and the interests of justice require that there be an order made correcting the will.
[12] Accordingly, I make the following order. The will of the late Ronald William Harris, executed on 11 August 2006 is to be amended under s 31 of the Wills Act 2007 by replacing the words: “the residence and contents or proceeds of sale shall fall into and form part of my residuary estate” which are in cl 3.2 of the will, with the words “the residue and contents or proceeds of sale shall be transferred to my children in equal shares”.
Solicitors:
Cashmere Law, Christchurch
1 Re Robertson [2013] NZHC 2723.
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