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 in the application are:

(a)      that a clerical error was made in the drafting of the will; and

(b)that  as  it  reads  the  will  does  not  give  effect  to  the  will-maker’s instructions.

[7]      On my first review of the papers, I considered that in Mr Britten’s supporting affidavit,  at  paragraph  5,  there  was  not  sufficient  evidence  of  Mr Robertson’s instructions to Mr Britten to enable me to consider the statutory test in s 31(1)(b).  I requested that a further affidavit be filed, exhibiting Mr Britten’s file note or other document, in which Mr Robertson’s instructions to him are recorded.  Mr Britten has filed  a  further  affidavit.    His  instructions  are  recorded  in  a  file  note  dated

11 November 2010. The relevant provision in the instructions read as follows:

Life  interest  clause  in  principal  residence  as  per  the  existing  Will  but amended clause 3(c) to provide that on date of death of Victor then to direct that  the  same  falls  into  the  residuary  estate  and  follows  the  destination thereof.

[8]      The file note also records instructions for the residue in the terms which I

have briefly summarised above.

[9]      I deal first with the question whether the circumstances as I have described them mean that the will does not give effect to the will-maker’s instructions.  I have derived some assistance from the English case of Re Segelman, deceased.1    In that case, the solicitor drafting the will had been instructed that there would be a gift to certain persons, the names of whom were to be advised to the solicitor later, so that their names could be included in a schedule.   The solicitor then drafted the will before the list of names was available.   In the relevant clause creating the gift in

favour of the persons to be named in the schedule, the solicitor included a provision for the substitution of issue of those persons, in the event that any of those persons predeceased the testator.  When the list was subsequently provided by the testator,

the list referred to each of the named persons “and his issue”.  The effect was the

1      Re Segelman, deceased [1996] Ch 171.

issue of each of the named persons were themselves named beneficiaries, not substitutionary beneficiaries.  The terms of that schedule, and the proviso which the solicitor had drafted, were therefore inconsistent. The solicitor did not turn his mind to the point and the will as executed included both the proviso, and the naming of the issue  in  the  schedule.    The  application  for  rectification  relied  on  s 20  of  the Administration of Justice Act 1982. That provision is in slightly different terms from s 31 of the Wills Act.  It reads:

(1)       If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions in consequence – (a) of a clerical error; or (b) of a failure to understand his instructions, it may order that the will shall be rectified so as to carry out his intentions.

[10]     Chadwick J noted that that subsection requires the Court to examine three questions.  First, what were the testator’s intentions with regard to the dispositions in respect of which the rectification is sought.   Secondly, whether the will is so expressed that it fails to carry out those intentions.  Thirdly, whether the will is expressed as it is in consequence of either (a) a clerical error, or (b) a failure on the part of someone to whom the testator has given instructions in connection with his will to understand those instructions.

[11]     Chadwick J found, in answer to the first and second questions, that the will as drafted failed to carry out the testator’s intentions.  He then considered the third question, whether the failure to carry out the testator’s intentions was a consequence of a clerical error or a failure to understand his instructions or had come about for some other reason.  He was satisfied that the reason why the will did not carry out the testator’s intention was that the solicitor had failed to appreciate that the proviso which he had included in the draft on his own initiative had become inapt once he had been instructed that the schedule was to take the form which it did.

[12]     Chadwick J held that that mistake did not arise from any failure by the solicitor to understand his instructions, but rather that the solicitor had simply forgotten that the proviso was there.

[13]     The  question  under  s 31(1)(b)  is  different  from  that  under  the  English provision.  The question is whether the will does not carry out the will-maker’s intentions because it does not give effect to the will-maker’s instructions.

[14]     I readily accept that Mr Robertson intended that, on his wife’s death, the house  should  go  to  his  children.    Mr Robertson  made  a  deliberate  distinction between the house and the rest of the estate.  If his wife survived him, she was to have a life interest in the house, but was to take the residue absolutely.  That distinction between the house and the rest of the estate would have made no sense if, on the wife’s death, the house formed part of her estate, by her succeeding to it under the residuary clause.   A further indication of Mr Robertson’s intention is that his earlier will, made in 1993, did correctly provide that the house property would go to his children on his wife’s death.

[15]     The point which arises is that Mr Robertson’s instructions, as recorded by Mr Britten, did not correctly reflect that intention. The will accurately gives effect to instructions as recorded in Mr Britten’s note.  However, it does not give effect to the will-maker’s intentions.

[16]     I consider that, for the purposes of s 31(1)(b), Mr Robertson’s instructions are not  the  instructions  as  recorded  in  Mr Britten’s  note,  but  the  instructions  as Mr Robertson  understood  them.     I  find  on  the  evidence  that  Mr Robertson understood that he was giving instructions to the effect that, on his wife’s death, the house would go to the children in the same way as the residue would have done if his wife had predeceased him.   Mr Britten also understood that to be Mr Robertson’s intention.   Mr Britten’s note did not correctly record Mr Robertson’s instructions. The incorrect recording of the instructions in the note carried through to the will so that,  in  terms  of  s 31(1)(b),  the  will  did  not  give  effect  to  Mr Robertson’s instructions.

[17]     In  case I am wrong in  that conclusion, I consider whether the incorrect reflection of Mr Robertson’s intentions, firstly in the file note and subsequently in

the drafting of the will, is a clerical error in terms of s 31(1)(a).  In Re Segelman, deceased, Chadwick J discussed this question at some length. He said:2

In  this  context  I  find  assistance  in  the  passage  in  Mortimer's  Probate Practice, 2nd ed. (1927), pp. 91-92, which is cited with approval by Latey J. in  In re Morris, decd.  [1971] P. 62, 80. The editor of Mortimer suggests a distinction between two types of case:

"First. Where the mind of the draftsman has really been applied to the particular clause, then, whether the error has arisen from the fact that he misunderstood the instructions of the testator, or, having understood the instructions, has used inappropriate language in seeking to give effect to them, the testator who executes the will is - in the absence of fraud - bound by the error so made as if it were his own, even if the mistakes were not directly brought to his notice; and the court will not omit from  the  probate  the  words  so  introduced  into  the  will. Secondly. Where the mind of the draftsman has never really been applied to the words in a particular clause, and the words are introduced into the will per incuriam, without advertence to their significance and effect, by a mere clerical error on the part of the draftsman or engrosser, the testator is not bound by the mistake unless the introduction of such words was directly brought to his notice."

The distinction between (i) the introduction of words into a will per incuriam without advertence to their significance and effect (described in that passage as "a mere clerical error"), (ii) the introduction of words to which the draftsman has applied his mind but in relation to which he has failed to understand his instructions and (iii) the introduction of words to which the draftsman  has  applied  his  mind  with  a  proper  understanding  of  his instruction but which (perhaps through failure properly to understand the law) do not achieve the objective which he and the testator intended was preserved when the law relating to the rectification of wills was altered by section 20(1) of the Act of 1982. The distinction had been recognised by the Law Reform Committee in their 19th report (Interpretation of Wills) (1973) (Cmnd. 5301), a report which led to, but which was not wholly carried into effect by, the Act of 1982. The alteration of the law made by that Act gives power to the court to order rectification, as distinct from the former power merely to order the omission of words from probate, and extends that power to cases of failure to understand instructions, in addition to mistakes in consequence of clerical error; but there is no reason to think that that which the editor of Mortimer would have recognised as a clerical error in 1927 was not intended to be picked up by paragraph (a) of section 20(1) of the Act of

1982.

[18]     Chadwick J held that the solicitor’s failure through inadvertence to delete the

proviso in the will in question in Re Segelman, deceased could properly be regarded as a clerical error for the purposes of that section.3

2      At 184-185.

[19]     In Re Morris, deceased Latey J described a mistake in a codicil by which the testatrix had revoked the whole of a clause in her will, not just one paragraph of that clause, as an error on the part of her solicitor in giving effect to his instructions. Latey J described the position in that case in these terms:4

The introduction of the words “clause 7” instead of “clause 7(iv)” was per incuriam. The solicitor's mind was never applied to it, and never adverted to the significance and effect. It was a mere clerical error on his part, a slip. He knew what the testatrix's instructions and intentions were, and what he did was outside the scope of his authority.

[20]     A similar conclusion was reached in Wordingham v Royal Exchange Trust Co Ltd.5    In that case the mistake lay in a failure to include in a new will a clause exercising a testamentary power of appointment. The relevant clause exercising that power had been included in earlier wills.  The Judge in that case described the solicitor’s error in failing to include that paragraph in the new will as a clerical error within s 20(1)(a) of the Act.

[21]     I have reached a similar conclusion on the circumstances here.   I consider that the error in giving effect to Mr Robertson’s intention, that, on his wife’s death, the house property should go not in accordance with the disposition of the residue under the will, but under the disposition of the residue as it would have been if his wife had not survived him, is a clerical error in giving effect to the intentions of the testator.

[22]     For  these  reasons  I  am  satisfied  that  s 31  applies  in  this  case.    The circumstances are such that the interests of justice clearly require that there be an order   correcting   the   will.      There   will   be   an   order   that   the   will   dated

22 December 2010 be amended by replacing the words “fall into my residuary estate

3      Re Segelman, deceased, above n 1, at 186.

4      Re Morris, deceased [1971] P 62 at 81.

5      Wordingham v Royal Exchange Trust Co Ltd [1992] 1 Ch 412 at 420-421.

then follow the destination thereof” in paragraph 3(b) of the will with the words “be distributed in accordance with cl 4(c)(ii) below as if my said wife had not survived me”.

“A D MacKenzie J”