Klaassen (Estate of Hyndman)

[2020] NZHC 3147

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-002142

[2020] NZHC 3147

UNDER	Under 31 of the Wills Act 2007
IN THE MATTER	Of the Estate of ELAINE JOY HYNDMAN (Deceased)
IN THE MATTER	Of an application by ANDREW DAVID KLAASSEN of Auckland, Solicitor, for an order that the deceased’s will be corrected

Hearing:	On the papers
Counsel:	B P C Carter for A D Klaassen
Judgment:	27 November 2020

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 27 November 2020 at 4.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Stafford Klaassen, Auckland

Brian Carter, Barrister (Bastion Chambers)., Auckland

KLAASSEN (the Estate of ELAINE JOY HYNDMAN (Deceased)) [2020] NZHC 3147 [27 November 2020]

Introduction

[1]                 Andrew David Klaassen, executor of the estate of Elaine Joy Hyndman, applies under s 31 of the Wills Act 2007 for orders correcting Elaine Hyndman’s will dated 13 June 2017 (the Will).

[2]                 On 13 November 2020, Gardiner AJ granted orders sought by Mr Klaassen that service of the originating application on affected parties be dispensed of and the matter be determined on the papers.1 The grounds for doing so were that all affected parties have signed consents to the correction sought.2

The correction sought

[3]                 Mr Klaassen says the Will in its present form does not give effect to the deceased’s instructions at the time the Will was prepared.

[4]Clause 4 provides:

4. MY trustee shall hold the whole of my estate on trust either to retain or sell it and:

(a)  to pay debts and executorship expenses;

(b)  to divide the residue into four (4) equal parts to be held as follows:

(i)  as to one part to my brother ERNEST RAYMOND SHRIMPTON;

(ii)  as to one part to my sister JULIE LORRAINE SADGROVE;

(iii)   as to one part to my brother in-law RAYMOND JOHN HYNDMAN;

and

(iv)  as to one part to my sister in-law VALERIE CAROLINE MITCHELL.

[5]Mr Klaassen seeks orders amending cl 4 to include the following paragraph:

(c)  If any beneficiary noted in paragraph 4(b) of this my will dies before me leaving children living at my death, then such children shall take, and if more

1      Re Estate of Elaine Joy Hyndman HC Auckland CIV-2020-404-002142, 13 November 2020 (Minute of Gardiner AJ) at [4].

2 Above n 1, at [2].

than one, in equal shares, the share that their parent would otherwise have taken.

[6]                 In support of the application is an affidavit sworn by Mr Klaassen, dated     10 September 2020, and affidavits sworn by Georgia Casey, dated 10 September 2020, and Angela Stafford, dated 11 September 2020, both solicitors of his firm, Stafford Klaassen.

[7]                 Mr Klaassen has been the solicitor for Elaine Hyndman and her husband, Brian Hyndman, throughout their lives. Brian died on 3 October 2019 and Elaine died on 28 October 2019. They had no children.

[8]                 Mr Klaassen’s affidavit records that in 2014 Brian and Elaine advised Stafford Klaassen of their wish to redraft their wills (together, the Wills) to make provision for their siblings’ children to take the siblings’ share of the estate if that sibling died before Brian and Elaine. On 6 October 2014, Mr Klaassen advised Elaine that he would redraft the Wills to that effect.

[9]                 Mr Klaassen says there was no follow-up to these instructions until 12 June 2017.

[10]              In June 2017, Mr Klaassen, Ms Casey and Ms Stafford visited Brian and Elaine at their home to sign redrafted wills that had been prepared. Mr Klaassen refers to the record in Ms Stafford’s file note, annexed to her affidavit, that he told Brian and Elaine the following:

“If any sibling predeceased them, the share would fall to their estate and be distributed accordingly – likely to the next generation. This would ensure Valerie’s children received her share and we talked about the fact she had seven children.”

[11]              Mr Klaassen says this statement was wrong because he had erred by failing to include wording to record that a sibling’s share would pass to that sibling’s children if that sibling predeceased Brian and Elaine. He says, however, that it is clear to him that Brian and Elaine’s intention was their Wills would include such wording.

[12]              Mr Klaassen, Ms Casey and Ms Stafford annex file notes to their affidavits recording their conversations with Mr and Mrs Hyndman over these relevant periods. Those records support the account of events in Mr Klaassen’s affidavit.

[13]              Mr Klaassen says he has discovered since Elaine’s death that Julie Sadgrove died on 17 September 2019, over two months before Elaine. Julie is survived by her three children. Mr Klaassen says the application to amend the Will is made “with the intent that Julie’s share in the estate pass to her children.” Otherwise, under the Will in its present form, they will not benefit from Elaine’s estate as Elaine intended.

[14]              In his submissions, Mr Klaassen records that there has been extensive consultation with family members prior to the application being made. Consents to the application have been obtained from the following persons identified as affected:

(a)Signed consent by Ernest Raymond Shrimpton;

(b)Valerie Caroline Neil has died, but consent is given by the four executors of her estate: Kathryn Nellie Paul, Christopher John McNeill,

Janice Maria Beck and Louise Nanette Duncan; and

(c)Raymond John Hyndman lacks capacity, but consent is given by his lawyers under an enduring power of attorney in relation to property and Michael John Hyndman and Ian Bruce Hyndman have signed consents.

[15]              Mr Klaassen submits that it is not necessary to obtain consent from the executor of Julie Sadgrove’s estate because the application is brought for the benefit of her three children.

[16]The funds in the estate total approximately $607,852.00.3

Discussion

[17]Section 31 of the Wills Act 2007 (the Act) provides:

3      In addition, there is a funeral account for $11,071.00 and unvalued jewellery.

31Correction

(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]              To aid in its assessment of whether orders for correction are appropriate, s 32 of the Act provides that a Court may use external evidence:

32External evidence

(1)  This section applies when words used in a will make the will, or part of it,—

(a)meaningless; or

(b)ambiguous on its face; or

(c)uncertain on its face; or

(d)ambiguous in the light of the surrounding circumstances; or

(e)uncertain in the light of the surrounding circumstances.

(2)  The High Court may use external evidence to interpret the words in the will that make the will or part meaningless, ambiguous, or uncertain.

(3)  External evidence includes evidence of the will-maker’s testamentary intentions.

(4)   The court may not use the will-maker’s testamentary intentions as surrounding circumstances under subsection (1)(d) or (e).

[19]              Having regard to the above evidence I am satisfied it was Elaine’s intention that the Will be amended in the terms provided in the proposed additional paragraph to cl 4, recorded above at [5], and that she gave instructions to Mr Klaassen as such. Accordingly, the Will in its present form does not give effect to Elaine’s intentions.

[20]              I also am satisfied all affected persons have been accurately identified and their consents obtained and that the amendment will not prejudice the interests of the other beneficiaries of the Will.

Result

[21]In accordance with s 31(2) of the Wills Act 2007, I make the following order:

The will of the deceased, Elaine Joy Hyndman, dated 13 June 2017 is corrected by the addition of a paragraph to sub-clause to cl 4 as follows:

“(c) If any beneficiary noted in paragraph 4(b) of this my will dies before me leaving children living at my death, then such children shall take, and if more than one, in equal shares, the share that their parent would otherwise have taken.”

G J van Bohemen J