Marfell v Marfell

[2015] NZHC 2714

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-821 [2015] NZHC 2714

UNDER

Wills Act 2007

IN THE MATTER

of an Application for Probate in Solemn
Form

BETWEEN

FRANCIS WILLIAM MARFELL AND PETER GERARD MARFELL

Plaintiffs

AND

DENIS JOHN MARFELL First Defendant

Hearing:	On Papers
Counsel:	D P Nield for Plaintiffs
Judgment:	4 November 2015

JUDGMENT OF SIMON FRANCE J

[1]      The testator died on 18 August 2015.  She had no siblings, parents or children who survived her.  By will dated 31 January 2014, the testator left her residual estate to her five surviving nieces and nephews. The relevant clause provides:

To pay the income [from the residuary estate] from the balance equally to

my niece and nephews…

[2]      No provision is made concerning payment of the capital. Application is made by the executors for the will to be amended to insert after the word income “and

capital”.

MARFELL & MARFELL v MARFELL [2015] NZHC 2714 [4 November 2015]

[3]      I am satisfied that a drafting error is involved and s 31 of the Wills Act 2007 can properly be invoked.  It is possible to see from the preceding will how the error arose.  In that will there was life interest in the income of the residuary estate to the testator’s sister, and then a gift of the residuary estate to the nieces and nephews. When the life interest was removed from this will, the capital aspect of the arrangement was deleted in error.

[4]      The five beneficiaries are the only remaining relatives.  All consent to the amendment.   It is appropriate to dispose of the matter on the papers and without notice by any other person.

Conclusion

[5]      I direct that the will of Patricia Mary Hoult be corrected so as to insert into cl 5.1, after the word income, the words “and capital”.

Simon France J

Solicitors:

Gascoigne Wicks, Lawyers, Blenheim