Re McKeay

[2012] NZHC 534

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV-2011-483-119 [2012] NZHC 534

In the Estate of                 JOYCE ELIZABETH MCKEAY

Hearing:         On the papers Counsel:  S J Burlace Judgment:       23 March 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 4.15pm on the 23rd day of March 2012.

JUDGMENT OF MACKENZIE J

[1]      This is an interlocutory application without notice for correction of a will, under s 31 of the Wills Act 2007.  The rectification sought involves the correction of the name of the residuary beneficiary.  The application is made on the basis that the name of the wrong person was inserted in the will, by mistake.

[2]      In minutes dated 11 October 2011 and 16 December 2011, I raised a number of matters directed to the question of whether the application could properly be considered on a without notice basis, under r 7.46 of the High Court Rules.   The consent of the person named in the will as residuary beneficiary has now been obtained.  In those circumstances, I am satisfied, under r 7.46(3)(e), that the interests of justice require the application to be determined without serving notice of the application.

[3]      I turn to consider the substantive application for an order correcting the will. The   circumstances   are   set   out   in   the   affidavit   of   Mr G R Spooner   dated

7 September 2011 in support of the application.   Mr Spooner is a principal in the

firm of Treadwell Gordon solicitors, the firm which prepared the will.  Mrs McKeay,

RE MCKEAY (DECEASED) HC WANG CIV-2011-483-119 [23 March 2012]

the deceased, was, when the will was made, a widow living in Wanganui.  She had no children.  In May 2008, she contacted Mr Burgess of Treadwell Gordon to give instructions for a new will.   Her instructions were to name as beneficiary her neighbour, Lorraine Williams. The deceased lived at 52 Hakeke Street Wanganui.  In the    electoral    roll    for    Whanganui    electorate    there    was    an    entry    for Lorraine Claire Williams  described  as  a  housewife,  living  at  54A Hakeke  Street Wanganui East.  Immediately above that entry in the electoral roll was the name of Loraini Tagavira Williams, housewife at 80 Niblett Street Wanganui Central.

[4]      It appears that what has happened is that Mr Burgess instructed his secretary to check the spelling of the name of Lorraine Williams from the electoral roll, and that, in error, the wrong name has been inserted in the will.   There is no direct evidence  from  Mr Burgess  to  confirm  that.    In  response  to  my  earlier  minute, Mr Spooner has sworn a further affidavit in which he advises that Mr Burgess has retired from the partnership and is not in good health.   In the circumstances, I consider that the inference that the wrong name has been inserted by error is so clear and strong that it is unnecessary to trouble Mr Burgess for further evidence.   It is clear from the electoral roll that the neighbour to whom Mrs McKeay intended to leave her estate was Lorraine Claire Williams of 54A Hakeke Street, not the person immediately adjacent to her in the electoral roll.  That is confirmed by the consent of Loraini Tagavira Williams which has been obtained, in which she consents to the matter being dealt with in her absence and confirms that she had no knowledge of the deceased.

[5]      There will be an order correcting the will dated 14 May 2008 by deleting of the name Loraini Tagavira Williams in cl 3.2 and substituting the name Lorraine

Claire Williams.

Solicitors:           Treadwell Gordon, Wanganui,  [email protected]

“A D MacKenzie J”