RE ESTATE ALLEN [2017] NZHC 916

RE ESTATE ALLEN [2017] NZHC 916

Where the Court is satisfied on the evidence that a will does not carry out the will-maker's intentions because of a clerical error or failure to give effect to instructions, and interested parties consent, the Court will correct the will under s31 to reflect the expressed intentions (here, replacing clause 4 with the specified bequests and removing the named beneficiary).

Citation
[2017] NZHC 916
Parties
Applicant; Solicitor for the Deceased: David J Brown; Deceased: Josephine Ivy Allen; Removed Beneficiary: Raymund Stanley Jenkin; Beneficiary: Trevor Leslie Allen; Beneficiary: Colleen Muriel Gibbs; Beneficiary: Joan Huks; Beneficiary: Dianne Nita Gyde; Beneficiary: Helena Mary Irwin; Beneficiary: Pauline Kathleen Burgess
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 May 2017
Procedural Posture
Application Under Section 31 Wills Act 2007 (correction/rectification of Will) / Decision on the Papers; Consent Order Made
Outcome
Application granted; orders made correcting the will under s31 in terms of the filed consent order.
Legal Topics
Rectification of Wills, Correction Under S31 Wills Act 2007, Probate
Wills and Estates Equity and Trusts Civil Procedure Rectification of Wills Correction Under S31 Wills Act 2007 Probate

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Parties

David J Brown

Applicant; Solicitor for the Deceased

Josephine Ivy Allen

Deceased

Raymund Stanley Jenkin

Removed Beneficiary

Trevor Leslie Allen

Beneficiary

Colleen Muriel Gibbs

Beneficiary

Joan Huks

Beneficiary

Dianne Nita Gyde

Beneficiary

Helena Mary Irwin

Beneficiary

Pauline Kathleen Burgess

Beneficiary

Procedural Posture

Application Under Section 31 Wills Act 2007 (correction/rectification of Will) / Decision on the Papers; Consent Order Made

Legal Issues

  1. 1 Whether the will of 25 January 2017 failed to give effect to the will-maker's instructions due to a clerical error
  2. 2 Whether the Court should exercise its power under s31 to correct the will to reflect the deceased's intentions
  3. 3 Whether the application could be determined on a without-notice basis given consent of interested parties

Ratio Decidendi

Where the Court is satisfied on the evidence that a will does not carry out the will-maker's intentions because of a clerical error or failure to give effect to instructions, and interested parties consent, the Court will correct the will under s31 to reflect the expressed intentions (here, replacing clause 4 with the specified bequests and removing the named beneficiary).

Court Disposition

Application granted; orders made correcting the will under s31 in terms of the filed consent order.

Orders

  • The will of 25 January 2017 is corrected so that clause 4 reads: 'I GIVE AND BEQUEATH as follows: (a) To the said TREVOR LESLIE ALLEN the sum of $50,000; (b) To COLLEEN MURIEL GIBBS the sum of $10,000; (c) To JOAN HUKS the sum of $5,000; (d) To DIANNE NITA GYDE the sum of $20,000; (e) To HELENA MARY IRWIN the sum of...
  • Orders made in terms of the consent order filed with the application.