IN THE ESTATE OF TREHEY HC NAP CIV 2009-441-899

IN THE ESTATE OF TREHEY HC NAP CIV 2009-441-899

Clause 2.1 did not give effect to the testator's intention because it failed to provide a mechanism to determine which partner of the firm was to act as executor; under s 31 Wills Act 2007 the Court may correct the will by substituting language that identifies the executors as Michael Peter Moody together with the partners of Carlile Dowling at the date of death and expresses the wish that one partner alone prove the will and act initially, thereby removing the uncertainty and giving effect to the testator's intention.

Citation
openlaw-02a8e4b9_0bb4_4a0a_a320_d23305426e6b.pdf
Parties
Deceased: Bernadette Anne Trehey; First Applicant; Proposed Executor: Michael Peter Moody; Second Applicant; Proposed Executor: Angela Jean Pidd; Second Applicant; Partner, Carlile Dowling: Martin Roger Doole; Second Applicant; Partner, Carlile Dowling: Michael Charles Morgan; Second Applicant; Partner, Carlile Dowling: Gavin Ross John Thornton
Court
Unknown Court
Jurisdiction
New Zealand
Judgment Date
16 February 2010
Procedural Posture
Will Correction Application (s 31 Wills Act 2007) / Without‑notice Application Heard on Papers; Judgment Delivered
Outcome
Order under s 31 Wills Act 2007 deleting clause 2.1 and substituting clarified executor clause; costs to be paid by the estate; directions for amended probate application and notification to Law Society
Legal Topics
Rectification of Wills, Correction Under S 31 Wills Act 2007, Executor Appointment, Uncertainty in Testamentary Dispositions, Probate Applications
Wills and Estates Probate Trusts Civil Procedure Rectification of Wills Correction Under S 31 Wills Act 2007 Executor Appointment Uncertainty in Testamentary Dispositions +1 more

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Parties

Bernadette Anne Trehey

Deceased

Michael Peter Moody

First Applicant; Proposed Executor

Angela Jean Pidd

Second Applicant; Proposed Executor

Martin Roger Doole

Second Applicant; Partner, Carlile Dowling

Michael Charles Morgan

Second Applicant; Partner, Carlile Dowling

Gavin Ross John Thornton

Second Applicant; Partner, Carlile Dowling

Procedural Posture

Will Correction Application (s 31 Wills Act 2007) / Without‑notice Application Heard on Papers; Judgment Delivered

Legal Issues

  1. 1 Whether clause 2.1 of the will is void for uncertainty as to which partner of the firm is appointed as executor
  2. 2 Whether s 31 Wills Act 2007 authorises correction to give effect to the testator's intentions in these circumstances
  3. 3 Whether the proposed substituted clause is effective and practical to implement the testator's intention

Ratio Decidendi

Clause 2.1 did not give effect to the testator's intention because it failed to provide a mechanism to determine which partner of the firm was to act as executor; under s 31 Wills Act 2007 the Court may correct the will by substituting language that identifies the executors as Michael Peter Moody together with the partners of Carlile Dowling at the date of death and expresses the wish that one partner alone prove the will and act initially, thereby removing the uncertainty and giving effect to the testator's intention.

Court Disposition

Order under s 31 Wills Act 2007 deleting clause 2.1 and substituting clarified executor clause; costs to be paid by the estate; directions for amended probate application and notification to Law Society

Orders

  • Order deleting clause 2.1 of the will dated 26 November 2009 and substituting: "I appoint MICHAEL PETER MOODY of Westshore in Napier, retired, together with the partners at the date of my death in the firm of Carlile Dowling presently of Raffles Street, Napier, as my Executors and Trustees (in this Will called \"my...
  • The costs of and incidental to the application shall be costs of the estate