Humphreys v Grainger

[2013] NZHC 3371

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-9950 [2013] NZHC 3371

IN THE MATTER OF

the estate of Bruce David Grainger

BETWEEN

RAYMOND MURRAY HUMPHREYS Plaintiff

AND

AMANDA JANE GRAINGER First Defendant

CATHERINE MARIE GRAINGER Second Defendant

MARK DAVID GRAINGER Third Defendant

THE CHRISTCHURCH KIDNEY SOCIETY INCORPORATED Fourth Defendant

Hearing:	On the papers
Counsel:	A C Hughes-Johnson QC and R B Sandford for Plaintiff R L D Paul for First Defendant B J Pelham for Second and Third Defendants B J Callaghan for Fourth Defendant
Judgment:	16 December 2013

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

11 am on the 16th day of December 2013.

Solicitors:           Anderson Sandford Allen, Riccarton, Christchurch, for Plaintiff

Wynn Williams, Christchurch, for First Defendant

Brian Pelham, Riccarton Family Law, Christchurch, for Second and Third
Defendants

McGillivray Callaghan & Co, Christchurch, for Fourth Defendant

HUMPHREYS v GRAINGER [2013] NZHC 3371 [16 December 2013]

[1]      This proceeding is an application for grant of probate in solemn form, and ancillary orders. The parties are agreed on the terms of an order.  I can therefore deal with the matter on the papers.

[2]      The deceased (Mr Grainger) died on 23 August 2013.  He left a will dated

26 September 2012. That is the will of which probate is sought.

[3]      When the will was made, Mr Grainger was in hospital.  He had been advised by his doctor to get his affairs in order.  A solicitor, Mr Sandford, was instructed, through the Christchurch Kidney Society Inc., to attend Mr Grainger.  Mr Sandford made immediate arrangements to go with his legal executive Mrs Panirau to visit Mr Grainger  at  Christchurch  Hospital.    Mr Sandford  took  instructions  which  he recorded in a note.   Because he was concerned about Mr Grainger’s condition, he instructed Mrs Panirau to prepare a handwritten will reflecting his instructions.  That handwritten will was signed by Mr Grainger and duly witnessed.

[4]      Mr Sandford and Mrs Panirau then returned to their office where a more formal document was prepared.   They returned to the hospital that afternoon and Mr Grainger signed the typewritten will.  That is the document of which probate is sought.

[5]      On those facts, the matter is straightforward and an application for probate in common form would have been appropriate.  The applicant has however elected to make application in solemn form because of several potential difficulties with the will.

[6]      In the will, Mr Grainger left a half share in his house property to “my ex wife Amanda  Marie  Grainger”.    Mr Grainger  had  two  ex-wives.    One  was  named Catherine Marie Grainger and the other Amanda Jane Grainger.   The name in the will is wrong.  Because one name of each of the ex-wives was used, there is potential uncertainty as to which was intended.  The circumstances disclosed by the affidavits indicate quite clearly, and all parties accept, that the ex-wife referred to is Amanda Jane Grainger.

[7]      There is another potential difficulty with that gift in the will.   Mr Grainger and Amanda Jane Grainger were party to a Relationship Property Agreement regarding  the  property.    There  are  potential  issues  about  the  inter-relationship between that agreement and the will.

[8]      A further and more minor matter is that the name of the executor is misspelt in the will.

[9]      The parties are agreed on the outcome and seek consent orders.

[10]     The Court may correct the will under s 31 of the Wills Act 2007 if it is satisfied  that  the  will  does  not  carry out  the  will-maker’s  intentions  because  it contains a clerical error or does not give effect to the will-maker’s instructions.  That is the case here.   The evidence satisfies me that the deceased intended to refer to Amanda Jane Grainger.   I am satisfied that the name of the beneficiary should be amended as sought.

[11]     I am also satisfied that the name of the executor should be amended, as his name was clearly incorrectly recorded in the will.

[12]     On the issue of the inter-relationship between the will and the Relationship Property Agreement, the Court can, under s 32 of the Act, use external evidence to interpret the words to resolve any ambiguity or uncertainty.   On the affidavit evidence, I am satisfied that the interpretation contended for in the order, on which the parties are agreed, is correct.

[13]     I make the following orders:

(a)       that  the  will  be  amended  to  record  that  the  executor  and  trustee appointed in clause 2 is Raymond Murray Humphreys;

(b)that the will be amended to read that the gift referred to in clause 6 of the will is a gift to Amanda Jane Grainger;

[14]     I declare that the gift in clause 6 is intended to be in satisfaction of the rights of Amanda Jane Grainger under clause 3 of the 3 November 2011 agreement only and that no further provision is to be made for Amanda Jane Grainger from the remaining interest in the Bayswater Crescent property.

[15]     Probate of the will, as amended, is granted.

[16]     By consent I order that the costs of this application, including the reasonable costs of all interested parties, be paid from the estate.

“A D MacKenzie J”