The O'Conor Institute Trust Board v Public Trust

[2021] NZHC 200

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-44

[2021] NZHC 200

UNDER

the Wills Act 2007

IN THE MATTER

of the will of Bruce Richard Warren dated 1 December 2017

BETWEEN

THE O’CONOR INSTITUTE TRUST BOARD

Applicant

AND

PUBLIC TRUST

Interested Party

AND

MICHAEL ORMANDY WARREN, CHRISTOPHER BRUCE ORMANDY WARREN AND NICOLA GAYE ROBOTTOM

Interested Parties

Hearing:	On the papers
Appearances:	W Palmer for the Applicant
Judgment:	17 February 2021

JUDGMENT OF COOKE J

[1]    The application for orders under s 31 of the Wills Act 2007 (the Act) correcting a will of the late Bruce Richard Warren has been referred to me in my capacity as Duty Judge. It is listed for call in the Judge’s Chambers List on 22 March 2021 but has been referred to me as the application does not appear to be opposed. The application is supported by an affidavit of Francis Thomas Dooley sworn 5 February 2021 and a memorandum of counsel dated 10 February 2021 focusing on procedural issues.

THE O’CONOR INSTITUTE TRUST BOARD v PUBLIC TRUST [2021] NZHC 200 [17 February 2021]

[2]    Whilst the memorandum of counsel was directed to procedural steps, and applications on the papers are usually accompanied by memorandum addressing the legal issues, on considering the matter I decided that it is appropriate to make the orders on the papers.

Factual background

[3]    As Mr Dooley explains in his affidavit there is a trust registered under the Charitable Trusts Act 1957 called The O’Conor Institute Trust Board. The trustees are the Archbishop of Wellington, the member of Parliament for the West Coast, and the Mayor of the Buller District Council. The only activity engaged in by the trust is the operation of a rest home known as the O’Conor Home.

[4]    In his will Mr Bruce Warren gifted $100,000 to “O’Conor Home Memorial Trust” stating that it was “in recognition of the care and support they gave to my late wife May Lesley Warren over the years prior to her death”. The records demonstrate that Mrs Warren was a resident of the O’Conor Home before her death.

[5]    The name used in Mr Warren’s will was not exactly correct. As Mr Dooley says the trust associated with the home is known by many similar names, including that used in Mr Warren’s will. But its formal name is The O’Conor Institute Trust Board.

[6]    As a consequence discussions have occurred between the affected parties. Agreement has now been reached between The O’Conor Institute Trust Board and all parties who have an interest in the will. That is reflected in a Deed of Family Arrangement which has been signed by all the parties.

Assessment

[7]Section 31 of the Wills Act provides:

31       Correction

(1)This section applies when the High Court is satisfied that a will does not carry out the will-maker’s intentions because it—

(a)contains a clerical error; or

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

(2)The court may make an order correcting the will to carry out the will- maker’s intentions.

[8]    Early authorities on the power of the Court to correct wills suggested a somewhat technical approach should be followed, but it is now recognised that the scope of the remedial provision given by the section should not be unduly limited.1 The power should be exercised to best achieve the will-maker’s intentions. In the present case I have little doubt that Mr Warren’s intentions were that the money be left to The O’Conor Institute Trust Board as the trust operating the rest home. There has accordingly been a failure to give effect to the will maker’s intentions. The instructions can be taken to have been that the correct legal entity be named in the will to give effect to that intention. In accordance with the Deed of Family Arrangement the resolution means there will be a 20 per cent reduction in the amount the trust receives, but in the circumstances that may be seen as understandable given the steps that have been required to be taken, and the desirability of there being agreement between those involved.

[9]    The application was initially brought on the basis that it would be formally served on the interested parties. But given that the Deed of Family Arrangement is executed by them, and all interested parties have been involved, I see no need to await that step. In case I am wrong I formally reserve leave to apply to alter this judgment should there be any issues.

[10]   For these reasons the orders set out in paragraph 1(a)–(e) of the originating application dated 10 February 2021 are granted. I direct that this judgment be served on all interested parties, and leave is reserved for any interested person to make application.

Cooke J

1      See Haldane v Haldane [2015] NZHC 352 at [25].

Solicitors:

Buddle Findlay, Christchurch