Johnson (dec'd) HC Wellington CIV-2011-485-1186

[2011] NZHC 1146

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1186

IN THE MATTER OF     the Estate of Arthur Victor Johnson

Hearing:         On the papers

Counsel:         S M Grindlay for Applicant

Judgment:      23 September 2011 at 2:30 PM

I direct the Registrar to endorse this judgment with a delivery time of 2.30pm on the

23rd day of September 2011.

JUDGMENT OF MACKENZIE J

[1]      This is an interlocutory application without notice for correction of a will under s 31 of the Wills Act 2007.

[2]      The will was executed on 3 February 1986.   Clause 2 provides that if the deceased’s wife shall survive him for one month, she is to receive the whole of the estate and is appointed sole executrix.  Clause 3 then provides that if the deceased’s wife does not survive for that period, an alternate executor is appointed.  Clause 4 makes a specific devise of a house then owned by the deceased, to a daughter. Clause 5 then gives the remainder of the estate to the deceased’s three daughters, in equal shares.  The difficulty which gives rise to the present application is that cls 4 and 5 are not made subject to the condition that they are to apply only in the event that the deceased’s wife does not survive him for one month.

[3]      The correction sought is to the effect that the words of limitation appearing at the beginning of cl 3, which limit the operation of that clause to the eventuality that the deceased’s wife did not survive him for the required period, shall apply also to

cls 4 and 5.  As the deceased’s wife has survived him for more than one month, the

RE JOHNSON (DECEASED) HC WN CIV-2011-485-1186 23 September 2011

effect of the correction would be to render cls 4 and 5 inoperative.  There is also a minor typographical error to be corrected.   In the words of limitation in cl 3, the word “month” has been omitted after the words “one calendar”.

[4]      The first question to be considered is whether the application may properly be dealt with without notice.  Counsel for the applicant refers to Re Benstead[1] where I dealt with a similar question, and referred to my earlier decision in Re Armstrong.[2]

This is a case where an interlocutory application in the proceeding application for letter of administration with will annexed is appropriate.   Rule 7.46 of the High Court Rules applies to it.  I must determine whether the application can properly be dealt with without notice.  In this case, I regard the relevant question as whether the interests of justice so require under r 7.46(3)(e).   The order which is sought will potentially affect only the three daughters of the deceased who are the beneficiaries under cls 4 and 5.  Each of them has consented to the making of the order.  In those circumstances, I consider that the interests of justice require that the application be dealt with without notice.  I therefore turn to deal with the application.

[1] Benstead (Deceased) HC Whangarei CIV-2010-488-599, 10 December 2010.

[2] Re Armstrong HC Wellington CIV-2008-435-95, 31 July 2008.

[5]      The solicitors who acted in the preparation of the will have been unable to locate the file, so there is no direct evidence of the testator’s instruction, or of his intentions.  I am satisfied that the intention of the testator must have been to limit the operation of cls 4 and 5 in the same way as cl 3 is limited.  I reach that conclusion because, unless that were the case, cl 2 on the one hand, and cls 4 and 5 on the other, are irreconcilable.  Furthermore, I consider that I may properly take judicial notice of the fact that drafting a will in this way, whereby the whole estate is left to a surviving spouse, with alternative provisions to apply only if that disposition to the spouse does not take effect, is so common place that I may infer that this is what the testator intended, and that the advice on which his instruction are likely to have been based would have been that the will should be drafted in that common form.

[6]      Accordingly, I am satisfied that the will does not carry out the will maker’s

intentions, both because it contains a clerical error (in the omission of the word

“month”), and because it does not give effect to the will maker’s instructions.

[7]      There will accordingly be an order correcting the will.  Clause 3 is amended to read: - “If my said wife shall not survive me for the period of one calendar month then and only in such case, the following provisions (the rest of this clause and clauses 4 and 5) shall apply.  I appoint Max Thomas Johnson (hereinafter called “my trustee”) to be executor and trustee of this my will.”

“A D MacKenzie J”

Solicitors:         Ian McCulloch Max Tait Legal, Porirua, for Applicant.