Smith

[2012] NZHC 1169

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2012-443-2 [2012] NZHC 1169

In the Estate of                 MERLA SMITH LATE OF NEW PLYMOUTH (DECEASED)

Hearing:         15 March 2012

Counsel:         P E Bulfin

Judgment:      29 May 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 4.30pm on the 29th day of May 2012.

JUDGMENT OF MACKENZIE J

[1]      Mrs Smith died at New Plymouth on or about 15 October 2011.  She left a will dated 25 October 1991 and a codicil dated 15 November 2001.  The applicants apply, by a without notice application, for an order correcting the codicil under s 31 of the Wills Act 2007.

[2]      The will provided that if Mrs Smith’s husband should survive her for one calendar month, the whole of the estate was left to him and he was appointed sole executor.   The will also provided for the appointment of substituted executors if Mr Smith did not survive his wife.

[3]      In 2001, Mrs Smith instructed her solicitor that she wished to appoint her two daughters (her only children) in place of the substituted executors, in the event of her husband  predeceasing  her.     A  codicil  was  prepared  to  give  effect  to  those instructions.    The  codicil  revoked  cl 4  and  substituted  a  clause  appointing  the

daughters as executrices and trustees.   Unfortunately, the new cl 4 did not provide

RE SMITH (DECEASED) HC NWP CIV-2012-443-2 [29 May 2012]

that it was to be operative, as the revoked cl 4 had been, only if Mrs Smith’s husband

did not survive her for the requisite period.

[4]      Mrs Smith’s husband died in April 2005.

[5]      In support of the without notice application for correction, the solicitor who prepared the codicil deposes that it was his clear understanding when preparing the codicil that Mrs Smith’s wish was that the appointment of her daughters should take place only if her husband should predecease her.

[6]      That is the event which has transpired.   However, it does not avoid the difficulty that there is, on the face of the will and the codicil, an uncertainty created by the failure to express the new cl 4 as applying only in the event that Mr Smith did not survive his wife.

[7]      The first question for consideration is whether the application may be dealt with on a without notice basis.  The making of the order correcting the will will not affect anyone other than the applicants.  They are the persons who would have been appointed if the clause did not create a technical uncertainty.   They are also the persons who would be entitled to apply for administration if the clause were void. Accordingly, I am satisfied that the application affects only the applicants and that it may properly be dealt with without notice.

[8]      I am satisfied that the will does not carry out the will-maker’s intention because it contains a clerical error and, as a consequence of that clerical error, does not  give  effect  to  the  will-maker’s  instructions.    I  order  that  the  codicil  dated

15 November 2001 be corrected by inserting, at the beginning of cl 4 of the will, as inserted by the codicil, the words “if my said husband shall predecease me or fail to survive me as aforesaid”.

“A D MacKenzie J”

Solicitors:         Halliwells, Solicitors, Hawera.  [email protected]