Public Trust v Flowers HC Auckland CIV-2010-404-7145

[2011] NZHC 1458

Judgment:      3 March 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-7145

UNDER  the Wills Act 2007

IN THE MATTER OF     the estate of KATHLEEN REGINA KIM FLOWERS

BETWEEN  PUBLIC TRUST Plaintiff

ANDJAMES DESMOND FLOWERS First Defendant

ANDPHILIP GEORGE REVELL AS LITIGATION GUARDIAN FOR ALEXANDER PETER WILLIAM CHAPMAN

Second Defendant

CIV-2009-404-5501

AND BETWEEN            IN THE ESTATE OF KATHLEEN REGINA KIM FLOWERS Deceased

Hearing:         (on the papers)

Counsel:         G Harrison for the Plaintiff

C Baker for the First Defendant
P Revell for the Second Defendant

Judgment:      3 March 2011 at 11:00 AM

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 3 March 2011 at 11:00 a.m. pursuant to r 11.5 of the High Court Rules 1985.

……………………………………

Registrar/Deputy Registrar

PUBLIC TRUST V FLOWERS HC AK CIV-2010-404-7145 3 March 2011

Counsel / Solicitors:

Mr G Harrison, Barrister, Auckland

Ms S Ball, Price Baker Berridge, Solicitors, Henderson

Mr P Revell, Corban Revell, Solicitors, Waitakere City
Mr J Gates, Public Trust, Lower Hutt

[1]      Public Trust  has  applied  for probate in  solemn  form  of the  will  of  Mrs

Kathleen Flowers who died on 17 July 2009.

[2]      The application has been made because of a simple error that occurred on 31

October 2008 when Mrs Flowers signed the will at an office of Public Trust.  Mirror wills had been prepared for Mrs Flowers and her husband, the first defendant Mr James Flowers.  Through inadvertence, the second page of the two page will signed by Mrs Flowers was a duplicate of the second page of Mr Flowers’ will.

[3]      The statement of claim seeks orders under s 14 or s 31 of the Wills Act 2007 in addition to the order granting probate.   The proceeding has been served on Mr Flowers and on the second defendant, Mr Revell, who was appointed  litigation guardian for Alexander Chapman, a child of Mrs Flowers.  I am satisfied from the evidence that there is no other person who may have an interest.  Mr Flowers has consented  to  a  grant  of  probate  in  solemn  form  and  Mr  Revell,  for Alexander Chapman, does not oppose the application.   This has enabled the application to proceed without need for a formal hearing, although relevant matters have been discussed with counsel at conferences.

[4]      There is an affidavit from the Public Trust officer who took the instructions from Mr and Mrs Flowers, drafted their wills, consulted with them again and produced the wills in final form for completion.   I am satisfied from this affidavit that there was a simple error as described above; the second page of Mrs Flowers’ will is the second page intended for Mr Flowers’ will.  The Public Trust officer has, in addition, produced a copy of what was intended as the second page of Mrs Flowers’ will.

[5]      The will as signed by Mrs Flowers is as follows, in relevant respects.

[6]      Page 1 is as intended and has been dated and initialled by Mrs Flowers and the two witnesses who have signed on page 2.  Clause 6 is the last clause on page 1 and appears in full on page 1.  Clause 6 contains the primary gift of residue to Mr Flowers if he survived Mrs Flowers by 30 days.  This provision has come into effect.

Page 1 of the will, as a matter of fact, contains all necessary provisions of a substantive nature.

[7]      Page 2 is headed “Will of JAMES DESMOND FLOWERS”.

[8]      Page 2 of the will has clauses numbered 8 to 11.   There is no clause 7. Clauses 8 and 10 contain gifts over of residue.  The named beneficiaries are identical to the named beneficiaries in clauses 7 and 9 of the second page intended for Mrs Flowers’ will, but the descriptions of the relationships of the beneficiaries to Mrs Flowers are inaccurate.  For example, clause 10.1 in the document as signed contains a gift to “my wife’s cousin Melissa Phillips”.  This should have said “to my cousin Melissa Phillips”.

[9]      The remaining error is that the typewritten attestation clause is: “SIGNED by JAMES DESMOND FLOWERS in our presence and witnessed by us in his presence”.  The signature of the testator is that of Mrs Flowers, and the signatures of the witnesses are the signatures of the two Public Trust officers who initialled the first page.

[10]     The application under s 14 of the Wills Act 2007 to have the will declared valid does not apply.   Section 14 is directed to documents intended as wills but which fail to comply with the formal requirements specified in s 11.  They are that a will must be in writing and it must be signed and witnessed as specified in ss 11(3) and (4). These requirements were met.

[11]     There is the alternative application under s 31.  Section 31 provides:

31       Correction

(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.

[12]     I am satisfied that s 31 applies, on both grounds set out in s 31(1).  Section 31 has been applied in broadly similar circumstances in, for example, Re Ioana[1] and Re Smart[2].

[1] HC Auckland, CIV 2009-404-5527, 27 October 2009, Allan J. 

[2] HC Palmerston North, CIV 2010-454-112, 30 April 2010, McKenzie J.

[13]     The formal order is as follows:

(a)      Probate of the will of Kathleen Regina Kim Flowers, being the will dated 31 October 2008, and being the document filed in this Court with the original application without notice for probate, is hereby

granted subject to the following amendments to page 2 of the will:

Delete the words “Will of JAMES DESMOND FLOWERS” at the top  of the page and substitute “Will of KATHLEEN REGINA

KIM FLOWERS”.

Delete clause 8 and substitute, as clause 7:

Further Gift of Residue

I GIVE –

My residuary estate to be divided equally per capita among my sons DOMINIC JAMES FLOWERS and ALEXANDER PETER WILLIAM CHAPMAN and my husband’s son NATHANIEL JAMES KEATS-FLOWERS living at my death who reach the age of 20 years.  However, if this gift to any such beneficiary does not take effect THEN any benefit to which that beneficiary would have been entitled is to be taken equally by those of his children who are living at the death of the survivor of us.

Re-number clause 9 as clause 8.

Delete clause 10 and substitute, as clause 9:

Further Gifts of Residue

My Trustee shall distribute my residuary estate as follows:

9.1As to a ½ share to my cousin MELISSA PHILLIPS if she survives me.

9.2As  to  a  ½  share  to  my  husband’s  sister  KATRINA TREGONING if she survives me.

9.3If the trusts of one share shall fail, my Trustee shall add that share to the other share.

Re-number clause 11 as clause 10.

Delete the attestation clause “SIGNED by JAMES DESMOND FLOWER in our presence and witnessed by us in his presence” and   substitute   “SIGNED   by   KATHLEEN   REGINA   KIM

FLOWERS in our presence and witnessed by us in her presence”.

Procedure

[14]     Public  Trust  proceeded  with  an  application  for  probate  in  solemn  form following the minute of Hugh Williams J of 29 March 2010.  For the reasons set out in that minute the Judge said: “Public Trust should give consideration to whether it should follow the Probate in Solemn Form procedure”.

[15]     This was understandable because the plaintiff had initially sought to deal with the problem by filing a without notice interlocutory application and without relevant evidence.  However, there was no formal direction of the Court that the matter had to proceed in solemn form.  The first requirement was to give notice to those who were or might be affected and to provide evidence.

[16]     As matters turned out in this case, once notice had been given to interested parties, and once evidence had been provided,  it was possible to deal with the application on the papers.  As this case illustrates, it may be possible to deal with problems of this nature by interlocutory application with evidence and on notice, rather than by a formal proceeding with a statement of claim for probate in solemn

form.   However, that will not always be the case.   These matters are more fully

discussed by McKenzie J in Re Armstrong.[3]

[3] HC Wellington, CIV 2008-435-95, 31 July 2008. And see also Re Smart HC Palmerston North, CIV

2010-454-112, 30 April 2010, where McKenzie J was able to proceed on a without notice application having received consent of interested parties.

Peter Woodhouse J