RE ESTATE OF GALLAIS [2017] NZHC 1405

RE ESTATE OF GALLAIS [2017] NZHC 1405

Section 31 permits the Court to admit evidence of the will-maker's instructions, including testamentary intentions, to determine whether a will fails to give effect to those instructions; applying that power the Court found the will did not effect the deceased's instructions because company assets were owned by the...

Source-derived case information.

Citation
[2017] NZHC 1405
Parties
Applicant / Executor: David Warwick Snedden; Applicant / Executor: Benjamin Nesbit Snedden; Respondent / Beneficiary: Susan Lynette Reid; Respondent / Opponent: You Tai Gallais; Deceased: Philippe Alain Robert Gallais
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 June 2017
Procedural Posture
Will Correction Under Wills Act 2007 / Hearing and Judgment on Application to Correct Will (s31)
Outcome
Application granted to correct will under s31 Wills Act 2007
Legal Topics
Rectification of Wills, Interpretation of Wills, Clerical Error, Costs
Wills and Estates Probate Family Law Trusts Rectification of Wills Interpretation of Wills Clerical Error Costs

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Summary, issues, holding and outcome

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Parties

David Warwick Snedden

Applicant / Executor

Benjamin Nesbit Snedden

Applicant / Executor

Susan Lynette Reid

Respondent / Beneficiary

You Tai Gallais

Respondent / Opponent

Philippe Alain Robert Gallais

Deceased

Procedural Posture

Will Correction Under Wills Act 2007 / Hearing and Judgment on Application to Correct Will (s31)

Legal Issues

  1. 1 Whether the will failed to carry out the will-maker's instructions under s31 Wills Act 2007
  2. 2 Whether evidence of the will-maker's testamentary intentions is admissible when determining correction under s31 given s32
  3. 3 Whether clauses 6 and 7 resulted from a clerical error and were thereby rectifiable

Ratio Decidendi

Section 31 permits the Court to admit evidence of the will-maker's instructions, including testamentary intentions, to determine whether a will fails to give effect to those instructions; applying that power the Court found the will did not effect the deceased's instructions because company assets were owned by the company and no gift of shares was made, and the clauses resulted from a clerical cut-and-paste error; therefore the will was corrected to give Ms Reid the shares and to remove the ineffective company-asset language; costs of applicants and Ms Reid to be paid from the estate.

Court Disposition

Application granted to correct will under s31 Wills Act 2007

Orders

  • Delete clause 6 of the will dated 20 March 2014.
  • Delete from clause 7 the words "and by Gallais Investments Limited".