Waby v Waby

[2018] NZHC 2832

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV 2018-485-815

[2018] NZHC 2832

UNDER

Section 31 of the Wills Act 2007

IN THE ESTATE OF

WILLIAM JOHN WABY

Deceased

AN APPLICATION BY

JOHN WABY

Beneficiary

Hearing:	On Papers
Counsel:	J T Varney for Applicant
Judgment:	1 November 2018

JUDGMENT OF SIMON FRANCE J

[1]On 17 August 2001, the testator executed a will prepared by solicitors.

[2]        At the time of making the will the testator was 72 years old. He was not married and had no partner. He did however have a son with whom he was close.

[3]The salient parts of the will are:

(a)“my son John Waby” is appointed executor and trustee;

(b)there is a specific gift to a friend;

(c)the residue is left “unto my said father” upon trust to pay just debts and to hold the residue for his own and separate use absolutely;

WABY [2018] NZHC 2832 [1 November 2018]

(d)provision is made for the situation where John Waby predeceases the testator, namely an alternative executor and trustee, and alternative beneficiary.

[4]        It is clear there is an error in naming “my said father” as the residual beneficiary. The testator intended the beneficiary to be his son. This is apparent both from the document itself and the background circumstances.

[5]Concerning the document:

(a)the reference is to “my said father” but he has not previously been mentioned. However, the testator’s son has;

(b)the son is appointed executor and trustee and would have the responsibility of paying debts, yet the clause tells the father to do so; and

(c)an alternative beneficiary is named should the son (not the father) predecease the testator.

[6]Concerning the background circumstances, the Court is advised:

(a)the son was the testator’s only family, a fact supported by the identity of the contingent beneficiary, namely a charitable organisation;

(b)the testator and the son were close;

(c)the testator had several times told the son he would be the beneficiary; and

(d)the testator was abandoned by his own father at an early age in England. There was no contact thereafter with his father. It is not known if the father is alive.

[7]        Pursuant to s 31 of the Wills Act 2007 I order  correction  of  the  will  of John Waby:

In clause 6 of the will, second line, the expression “my said father” is corrected to read “my said son”.

Simon France J