Robinson v Robinson

[2020] NZHC 1878

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-940

[2020] NZHC 1878

IN THE MATTER

of s 31 of the Wills Act 2007

AND

IN THE MATTER

of an application for correction of a will

BETWEEN

PETER JOHN ROBINSON and JULIE BURDETT ROBINSON

Applicants

AND

ANNA LOUISE CLAIRE ROBINSON

First respondent

LINDA BURDETT ROBINSON by her
litigation guardian MARK STEWART CARTER

Second respondent

Hearing:	30 July 2020
Appearances:	D K Wilson for the applicants
Date of judgment	30 July 2020

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 30 July 2020 at 3.30pm.

Pursuant to Rule 11.5 of the High Court Rules

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

D K Wilson Barrister, Auckland Lovegroves, Auckland

Bay Law Office, Auckland KBS Lawyers, Auckland

ROBINSON v ROBINSON [2020] NZHC 1878 [30 July 2020]

[1]                Naomi Julie Robinson died at Auckland on 27 October 2017, soon after her diagnosis with breast cancer in January 2017, with her rapid deterioration from September 2017. She hand-wrote her own will, which her brother accurately copy- typed for her witnessed execution on 27 September 2017.

[2]                The applicants, having been granted probate of the will on 21 November 2019, seek to correct the will’s disposition of a rental property in Auckland’s St Heliers “to a family trust, set-up for the purpose of providing financial security” for herself and five specified family members, as there is  no  such trust.  Rather it  is  contended  Ms Robinson intended to leave the property for the benefit of those surviving named people. Those five are her father and mother, brother and sister, and daughter.

[3]                Ms Robinson’s father died on 30 October 2017. Her mother and brother are the applicants. Her daughter consents to the application for the will’s correction, as does her sister’s litigation guardian.

[4]                Wills stand to be rectified or interpreted under the Wills Act 2007. Relevantly here, if I am satisfied “the will does not carry out the will-maker’s intention because it … does not give effect to the will-maker’s instructions”, I may make “an order correcting the will to carry out the will-maker’s intentions”.1 Or, if the words used make the will or some part of it meaningless, or ambiguous or uncertain (in either respect, whether on its face or in the light of surrounding circumstances), I may use external evidence – including of the will-maker’s testamentary intentions, but not as evidence of the surrounding circumstances – to interpret those words.2 My “overriding objective is to give effect to the intentions of the testator”.3

[5]                There is no issue with the accuracy of the will’s copy-typing. As a copy of her expressed intentions, there can be no doubt the will gives effect to Ms Robinson’s instructions. Rather the will’s reference to “a family trust” is at least meaningless, ambiguous, or uncertain, in the absence of any family trust. Inclusion of her own name among the contended beneficiaries suggests Ms Robinson may have understood a

1      Wills Act 2007, s 31.

2      Section 32.

3      Wilson v Davidson [2017] NZCA 468 at [10], citing Re Jensen [1992] 2 NZLR 506 (HC) at 510.

family trust to exist. But there is no basis to construe Ms Robinson’s testamentary intentions as being to share the property directly with named individuals. Therefore she must have intended to confer the benefit of the property on them in some other way. Neither is there a basis to construe Ms Robinson’s intentions to require formal establishment of a family trust. Her brother deposes he does not think she had “a good understanding of family trusts in a legal sense”. There accordingly only is one meaning to the words used by Ms Robinson.

[6]                Under s 32 of the Wills Act 2007, I interpret the will as intending the executors to hold the property in trust for  the  purpose  of  providing  financial  security  for Ms Robinson’s named survivors.

—Jagose J