Will of Walsh

[2017] NZHC 2693

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000841 [2017] NZHC 2693

UNDER	Section 14 Wills Act 2007
IN THE MATTER	of the Will of GERALD EDWARD JAMES WALSH
BETWEEN	PAUL JOHN BUCKNELL Applicant

Hearing:	3 November 2017 (On the papers)
Appearances:	S C Clay for the Applicant
Judgment:	3 November 2017

JUDGMENT OF DUNNINGHAM J

[1]      This is an application, without notice, for:

(a)       an order declaring a document to be a valid will under s 14 of the

Wills Act 2007; and

(b)      the correction of the will under s 31 of the Wills Act 2017 to give

effect to the testator’s intentions.

WILL OF GERALD EDWARD JAMES WALSH [2017] NZHC 2693 [3 November 2017]

[2]      The applicant is the nephew of the late Gerald Edward James Walsh and he is the executor of the document which is sought to be validated as a will.   The applicant’s uncle prepared the document on a generic form intended for the preparation of a will and which set out various prompts in which a testator could insert their particular instructions for the distribution of their estate on their death.

[3]      The intended will leaves the majority of the deceased’s property to his sister Norma Patricia Bucknell or, if she predeceased him, to her two children in equal shares.     The  will  was  witnessed  by  two  people  when  it  was  executed  on

25 October 1995.   However, the deceased added a further provision in his will on

1 June 2013 to provide a specific bequest to the SPCA Canterbury, of $10,000, and a bequest  of  $5,000  to  a  neighbour,  Kathleen  Jane  Rutter.    That  portion  of  the document had not been witnessed as required.

[4]      The   application   is   accompanied   by   the   affidavit   of   the   applicant, Paul John Bucknell and also of Norma Patricia Bucknell, the deceased’s sister, and Faye Isabel Pettersen, one of the witnesses of the original will.  The totality of this evidence   demonstrates   that   the   document   was   executed   in   Christchurch, New Zealand, was intended to be his will and expresses the testator’s intentions, which was to leave the bulk of his estate to his sister, but also to benefit the SPCA Canterbury, and his long time neighbour, Kathleen Jean Rutter, in his will.

Section 14 Wills Act

[5]      Section 14 Wills Act 2007 provides:

14       High Court may declare will valid

(1)      This section applies to a document that—

(a)      appears to be a will; and

(b)      does not comply with section 11; and

(c)      came into existence in or out of New Zealand.

(2)       The High Court may make an order declaring the document valid, if it is satisfied that the document  expresses the  deceased person’s testamentary intentions.

(3)      The court may consider—

(a)      the document; and

(b)      evidence on the signing and witnessing of the document; and

(c)      evidence on the deceased person’s testamentary intentions;

and

(d)      evidence of statements made by the deceased person.

[6]      I am satisfied in the circumstances  that the requirements of s 14  of the

Wills Act 2007 are made out in that:

(a)       the document appears to be a will;

(b)      the document came into existence in New Zealand;

(c)      the document has not been executed in the manner prescribed in s 11 of the Wills Act 2007, because the additional bequest added to the will, and which postdates the document that appears to be a will dated

25 October 1995, has not been signed by two witnesses;

(d)      the document expresses the deceased’s testamentary intentions;

(e)      the consent of all persons who may be potentially affected by the granting of the order have consented to the application.

Section 31 Wills Act

[7]      Since the application was filed, it was also identified that, as drafted, (no doubt because it was done without legal assistance) there was an unintended tension in the will between the testator’s instruction to give the property at 35 Cowes Street, Christchurch and all money in bank accounts to the testator’s sister, with the subsequent bequests totalling $15,000, when he did not have $15,000 of assets, other than the property at Cowes Street and bank accounts, with which to honour that bequest.  Thus while it was clear that the testator intended to make the two bequests and then leave the balance of his estate to his sister, in practical terms there would have been difficulty giving effect to this intention as the will  was drafted.   An

application was therefore subsequently made under s 31 of the Wills Act 2007 to address this.

[8]      Section 31 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.

[9]      I am satisfied that there was an unintended error in the drafting, and that, after payment of debts and funeral expenses, the testator intended the two specific bequests to be made and then the balance of his estate to go to his sister.   His intentions can be achieved by reversing the order in which the specific bequests and then the residue of the estate are dealt with in the will.

[10]     Accordingly, I make orders that:

(a)      The document dated 25 October 1995, marked “A” and attached to the affidavit of the applicant filed in support of the application, is declared valid as the last will of the deceased, Gerald Edward James Walsh.

(b)The will is corrected pursuant to s 31 of the Wills Act 2007 by making the following amendments:

(i)the terms of the “Addition Bequest” [sic] on page two of the will are shifted to immediately under the words “I give and bequest”;

(ii)the words “the property of 35 Cowes Street and all money invested or deposited in bank accounts and bonus bonds” are deleted; and

(iii)the  words  on  page  two  of  the  will  “I  Give  Devise  and Bequeath the rest of my property of whatsoever nature and wheresoever  situate  unto”  are  shifted  from  their  present position   and   inserted   above   the   words   “to   my   sister Mrs N Bucknell or in the event of her being deceased, to her two children in equal share”.

Solicitors:

Lane Neave, Christchurch