Robertson - [2013] NZHC 2723

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2013-454-000274 [2013] NZHC 2723

In the Estate of VICTOR FREDERICK ROBERTSON

Hearing: On the papers

Counsel:

B A Britten

Judgment:

18 October 2013

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
3.30 pm on the 18th day of October 2013.

Solicitors: Brittens, Palmerston North.

Re Robertson (deceased) [2013] NZHC 2723 [18 October 2013]

[1] This is an application for an order under s 31 of the Wills Act 2007 correcting the will of the deceased, to whom I will refer as Mr Robertson.

[2] The first question is whether the application can properly be dealt with without notice. All persons who would be affected by the making of the order sought must have a proper opportunity to be heard. The persons who would be affected by the correction sought are Mr Robertson’s wife, and potentially the beneficiaries in her estate. Mrs Robertson has consented to the order sought. The persons who might benefit under her estate are not an identifiable class. For these reasons I do not consider that service on any other persons is necessary. I consider that the interests of justice require the application to be determined without notice, under r 7.46 of the High Court Rules.

[3] The will is dated 22 December 2010. Under it, Mr Robertson gave his wife a life interest in the house in which they were living. He left the rest of the estate (defined as my residuary estate) to his wife if she should survive. In the event that she did not survive there was a gift of personal chattels and the balance was given in prescribed shares to Mr Robertson’s children and grandchildren.

[4] The error sought to be corrected is in the provision made for the disposition of the house on the death of Mrs Robertson. Clause 3(b) of the will provides:

And as from the date of the death of my said wife the said principal residential property or the proceeds of sale of same shall fall into my residuary estate and follow the destination thereof.

[5] Mr Britten, the solicitor who prepared the will, notes that the effect of the will is that, because Mrs Robertson survived her husband, she is the beneficiary under the residuary clause. In his affidavit sworn in support of the application, Mr Britten said:

The intention of the deceased in accordance with the instructions given to me was that the interest in the principal residential property was not to go to the said Aileen Robertson at the expiration of the life interest as clearly that would negate the intentions of the deceased. Rather it was intended that for asset planning purposes the interest in the property would go to the other residuary beneficiaries as named in paragraph 4(c)(ii) on termination of the life interest.

[6] The application to correct the will relies upon both limbs of s 31. That is to say, the grounds set out…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Robertson

Details

AGLC: Robertson [2013] NZHC 2723
Case: [2013] NZHC 2723
Decision Date: 18 October 2013

CaseChat Overview and Summary

This case concerns an application to correct the will of the deceased, Victor Frederick Robertson, under section 31 of the Wills Act 2007. The deceased's solicitor, Mr Britten, had prepared the will dated 22 December 2010. The application sought to correct a provision in the will regarding the disposition of the deceased's house on the death of his wife. The error lay in the clause providing that the house would fall into the residuary estate rather than going directly to the deceased's children. The application for correction relied on both limbs of section 31: a clerical error in drafting the will and the will not giving effect to the deceased's instructions.

The court considered whether the application could be dealt with without notice and concluded that it could, given the circumstances. The court then examined whether the will failed to give effect to the deceased's instructions or resulted from a clerical error. The court found that while the will accurately reflected the instructions as recorded in the solicitor's note, it did not reflect the deceased's actual intentions. The deceased intended that upon his wife's death, the house would go to his children, not as part of the residue. The court held that the error in the will was a clerical error and that the will did not give effect to the deceased's instructions. Therefore, the court granted the application to correct the will.

The court ordered that the will dated 22 December 2010 be amended by replacing the specified words in clause 3(b) with new wording that accurately reflects the deceased's intention for the disposition of the house upon his wife's death.

Orders