Wain (Estate of Chambers) HC Wellington CIV 2010-406-136

[2010] NZHC 1894

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-406-136

IN THE MATTER OF     the estate of Eileen Clara CHAMBERS

JOB JOHN WAIN
ALAN JAMES NAYSMITH

MARTYN ROBERT BRUCE WILSON Applicants

Hearing:         On the papers

Counsel:         G F Kelly for Applicants

Judgment:      23 September 2010 at 3.30pm

I direct the Registrar to endorse this judgment with a delivery time of 3.30pm on the

23rd day of September 2010.

JUDGMENT OF MACKENZIE J

[1]      This is an application under s 31 of the Wills Act 2007 to correct a will.  The correction sought is the deletion of the clause dealing with appointment of executors which provides:

I APPOINT my husband DOUGLAS WALTER CHAMBERS (hereinafter referred to as “my Trustees”) to be the Executor and Trustee hereof PROVIDED HOWEVER that should my said husband predecease me or not undertake the administration of my estate within a period of six months from the date of my death then I APPOINT two Partners for the time being of the firm Wain & Naysmith, Solicitors, Blenheim (hereinafter referred to as ‘my Trustees”) to be Executors and Trustees hereof.

[2]      The correction sought is to substitute the following clause:

I APPOINT  my husband DOUGLAS WALTER CHAMBERS to be the executor and trustee hereof (hereinafter referred to as “my Trustee”) PROVIDED HOWEVER that should my said husband predecease me or not undertake the administration of my estate within a period of six months from the date of my death then I APPOINT the partners at the date of my death in

WAIN AND ORS (RE CHAMBERS DECEASED) HC WN CIV-2010-406-136  23 September 2010

the firm Wain & Naysmith presently of High Street, Blenheim as my executors  and  trustees  (hereinafter  referred  to  as  “my  Trustees”  (and  I express the wish that two and only two of such partners of Wain & Naysmith shall prove my will and act initially in its trusts.

[3]      The husband of the will maker has predeceased her.  Accordingly, it is the appointment of the substitute executors which is operable.   The reason for the application is that the clause contained in the will is, at least arguably, void for uncertainty.  A similar clause was considered by Asher J in Re Mansfield,®[1]  and by Woodhouse J in Trehey.[2]    It is unnecessary for me to repeat the discussion of the authorities in those two cases.

[1] Re Mansfield HC Auckland CIV-2008-404-7115, 10 March 2009.

[2] Trehey HC Napier CIV-2009-441-899, 16 February 2010.

[4]      I consider  that  the  proposed  change  comes  within  the  scope  of  s 31.    I consider that the will maker’s intention was to effect a valid appointment of any two partners in the firm as her executors.   The will does not give effect to the will marker’s instructions because the way in which the clause was drafted means that it does not carry out that intention, having regard to the authorities.

[5]      If the will were not corrected, it would be necessary to apply for letters of administration  with  will annexed,  under  r 27.25  of  the  High  Court  Rules.    The priority of potential administrators in that event would be determined by r 27.26. That would, in the circumstances here, give priority to the only son of the deceased. He has consented to the making of the order proposed.   In those circumstances, I consider that this application may properly be dealt with on a without notice basis, in that the interests of justice so require.

[6]      There will be an order correcting the will by deleting the existing cl 1 of the will and substituting the clause set out in para [2] above.

“A D MacKenzie J”

Solicitors:         Greg Kelly Law Limited, Wellington for Applicants