MacPherson

[2023] NZHC 3135

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-662

[2023] NZHC 3135

IN THE MATTER

of the Estate of HAMISH SHEWAN

MACPHERSON

Hearing:	On the Papers
Counsel:	C G Pirie for Applicant
Judgment:	7 November 2023

JUDGMENT OF McQUEEN J

[1]    Jana MacPherson applies on a without notice basis for an order correcting    cl 2(b) of the will of her late husband, Hamish MacPherson, pursuant to s 31 of the Wills Act 2007. Mr MacPherson died on 6 September 2023.

[2]    An affidavit from Clark Pirie is filed in support of the application. Mr Pirie is a solicitor practising in Queenstown. Mr Pirie explains that  he was  instructed  by Mr MacPherson and Mrs MacPherson to prepare wills for each of them. Mr Pirie explains that he has previously acted as solicitor for Mr MacPherson in respect of several business matters and more recently for Mr and Mrs MacPherson in the purchase of a Queenstown property in 2021. Mr and Ms MacPherson have two children. Mr Pirie says that he raised the need for wills and other estate planning documents with Mr and Ms MacPherson when they bought their property, and subsequently, when Mr MacPherson became unwell.

MACPHERSON v [2023] NZHC 3135 [7 November 2023]

[3]    Mr Pirie deposes that in February  2023,  he  was  instructed  by  Mr  and  Mrs MacPherson to prepare simple mirror wills that provided for their respective estates to be transferred to each other on the death of the first of them, and on the death of the last of them, for their children to take all of their property. Mr Pirie asked his office staff to prepare mirror wills and says that the first will to be prepared was that of Mrs MacPherson.

[4]Mrs MacPherson’s will is attached to Mr Pirie’s affidavit. The will states:

2. IF my husband HAMISH SHEWAN MACPHERSON of Queenstown, Manager shall survive me for a period of fourteen (14) days then:

a) I APPOINT my said husband to be the Executor of this my Will; and

b) I GIVE DEVISE AND BEQUEATH the whole of my estate whatsoever and wheresoever situate unto my said husband for his own use and benefit absolutely.

[5]    Mr Pirie explains that after preparing Mrs MacPherson’s will, his staff prepared Mr MacPherson’s will using Mrs McPherson’s will as a template. Both wills were executed on 11 April 2023.

[6]    Mr MacPherson’s will has been filed in the Court for the purpose of obtaining a grant of probate. Mr Pirie says that there is a clerical error in Mr MacPherson’s will at [2(b)] in that his will refers to his estate being bequeathed to his “husband”. Mr Pirie says that cl 2(b) of Mr MacPherson’s will should mirror Mrs MacPherson’s will, for his estate to be transferred to his wife. Mr Pirie deposes that he and Mr MacPherson overlooked this error in the execution of Mr MacPherson’s will. Mr Pirie says the correction of Mr MacPherson’s will to replace the word “husband” with “wife” will give effect to Mr MacPherson’s testamentary instructions for the transfer of his assets to his wife.

[7]Section 31 of the Wills Act 2007 states:

(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.

[8]    The reference to “husband” in cl 2(b) of Mr MacPherson’s will was clearly intended to read “wife”. I am satisfied that the will as it stands does not carry  out  Mr MacPherson’s intentions because of the clerical error. This issue occurred in the case of Re Bonnington, and like Clark J in that case, I am satisfied that it is appropriate to make the order sought.1

[9]    I therefore order that the word “husband” in cl 2(b) of Mr MacPherson’s will dated 11 April 2023 be replaced with the word “wife”.

McQueen J

Solicitors:
MacTodd Lawyers, Queenstown for Applicant

1      See Re Bonnington (dec'd) [2016] NZHC 653.