Nolan

[2014] NZHC 1499

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-4205 [2014] NZHC 1499

IN THE ESTATE OF         STANLEY AUBREY NOLAN (DECEASED)

Hearing:	On the papers
Counsel:	M B Deacon
Judgment:	1 July 2014

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

2.30 pm on the 1st day of July 2014.

Solicitors:           Sumpter Moore, Balclutha.

Re Nolan (deceased) [2014] NZHC 1499 [1 July 2014]

[1]      This is a without notice application to correct the will of the deceased.  The application is made as an interlocutory application in the probate proceedings. When the application for probate was considered the errors which are now sought to be corrected were noted by the Registrar.  He declined to grant probate at that stage and indicated that an application to correct the will should be filed.

[2]      The first issue for me is to consider whether the application can properly be dealt with without notice, under r 7.46(2) of the High Court Rules.   I am satisfied that there are no other persons who are affected by the application or the order sought who should be given an opportunity to be heard on the present application.  I accordingly am satisfied, under r 7.46(3), that the interests of justice require the application to be determined without notice.

[3]      The circumstances giving rise to the error in the drafting of the will appear from the affidavit of the solicitor who prepared the will, Mr Deacon.  Mr Deacon’s firm prepared mirror wills for the deceased and his late wife.  The will of the wife was prepared first and was used as a template for preparing the will of the husband. That method of drafting meant that the word “him” had to be changed to “her” and the word “husband” had to be changed to “wife”.   The necessary changes were overlooked, in two places.

[4]      I am satisfied, in terms of s 31(1) of the Wills Act 2007, that the corrections sought are necessary to correct a clerical error in the will, to carry out the deceased’s testamentary intentions.

[5]      There   will   be   an   order   correcting   the   will   of   the   deceased   dated

6 November 2008, a copy of which is annexed to the affidavit of Mark Barry Deacon sworn on 13 May 2014 as follows:

(a)       changing the word “him” where it appears in cl 2 of the will to “her”;

(b)      changing the word “husband” where it appears in cl 3 to “wife”.

“A D MacKenzie J”