Laing

[2013] NZHC 2900

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-485-006493 [2013] NZHC 2900

UNDER THE  Wills Act 2007

IN THE ESTATE               of WARREN DAVID LAING of Auckland in New Zealand, Kitchen Designer Deceased

On the papers

Judgment:                4 November 2013

JUDGMENT OF GILBERT J

This judgment was delivered by me on 4 November 2013 at 4.00 pm Pursuant to Rule 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:………………

Warren David LAING [2013] NZHC 2900 [4 November 2013]

[1]      William David Laing of Auckland died on or about 8 September 2013.  In his Will    dated    23    January    2013    he    appointed   Andrew    Greig    Jeffs    and Bronwen Sheryl Howes as his executors in the event that his wife did not survive him, which she did not.   The executors discovered, in the course of applying for probate, that there are two obvious clerical errors in the Will.  They now apply for an order pursuant to s 31 of the Wills Act 2007 correcting these errors.

[2]      The errors are in cls 2 and 3 of the Will which provide as follows:

2.IF my wife BETTINA ANN JEFFS shall survive me for the period of seven (7) days then:

(a)       I APPOINT my wife to be the executor of this my Will.

(b)I GIVE all property over which I have any power of testamentary disposition wherever situated to my husband absolutely.

3.IF my said husband shall not survive me for the aforesaid period then I APPOINT my brother in law ANDREW GREIG JEFFS of Auckland, Professor of Marine Biology and my sister, BRONWEN SHERYL HOWES Christchurch, Nurse (“my Trustees”) or the survivor of them to be the executors and trustees of this my Will.

[3]      It is obvious that the reference in cl 2(b) and in the first line of cl 3 to

“husband” was intended to be “wife”.

[4]      Joanne Rice, the solicitor who drafted the will, confirms this.  In her affidavit, she says that she drafted Mr Laing’s Will and a mirror Will for his wife at the same time.   She deposes that Mr Laing’s instructions were to appoint his wife as the executor of his Will and to give all of his property to her absolutely but that if she did not survive him, he wished to appoint Mr Jeffs and Ms Howes as his executors. In that event, the estate was to be distributed equally to his two children, Felixe and Rufus Laing if they survive him and attain the age of 25.

[5]      Ms Rice attended Mr Laing when he signed the Will.   She deposes that neither she nor Mr Laing was aware of the errors at that time. These had come about as a result of her preparing the two Wills at the same time and failing to make the necessary adjustments.

[6]      Mr Jeffs deposes that he has day to day care of Mr Laing’s children in terms of cl 7 of the Will.  He confirms on their behalf that they are aware of the current application and support it.  No other person is affected by the application.

[7]      I am satisfied that the Will does not carry out Mr Laing’s intentions, and does not does not give effect to his instructions, because of the two clerical errors.  It is appropriate to make an order correcting these obvious errors in the Will.  I therefore make the following order:

(a)       replacing the word “husband” in cl 2(b) with the word “wife”; and

(b)      replacing the word “husband” in cl 3 with the word “wife”.

M A Gilbert J