COLEMAN v CHALKLEN & OTHERS [2016] NZHC 3178

COLEMAN v CHALKLEN & OTHERS [2016] NZHC 3178

The court could admit extrinsic evidence under the armchair principle to determine the testator's intention, the reference to "four nieces" was a false descriptive error which did not vitiate the gift, and consequently the court rectified clause 4(b) to identify the residuary beneficiaries as the four children of the testator's niece (Dawn Chalklen). S31 Wills Act 2007 was inapplicable as the testator died in 1988.

Citation
[2016] NZHC 3178
Parties
Applicant (sole Surviving Executor and Trustee): Adrian James Coleman; Respondents: Dawn Lois Chalklen & Others
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 December 2016
Procedural Posture
Declaratory Judgment (will Construction) / Judgment
Outcome
Application granted; clause 4(b) rectified to identify residuary beneficiaries as the four children of the testator's niece (Mrs Dawn Chalklen).
Legal Topics
Will Construction, Rectification/rectification Order, Certainty of Beneficiaries, Extrinsic Evidence (armchair Principle), Mistake in Testamentary Description
Wills and Probate Trusts Estate Administration Rectification of Wills Will Construction Rectification/rectification Order Certainty of Beneficiaries Extrinsic Evidence (armchair Principle) +1 more

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Parties

Adrian James Coleman

Applicant (sole Surviving Executor and Trustee)

Dawn Lois Chalklen & Others

Respondents

Procedural Posture

Declaratory Judgment (will Construction) / Judgment

Legal Issues

  1. 1 Whether clause 4(b) of the 1987 will is void for uncertainty due to a misdescription of beneficiaries
  2. 2 Whether the court can admit and rely on extrinsic evidence (armchair principle) to identify testator's intent for a will executed in 1987
  3. 3 Whether s31 Wills Act 2007 permits correction (deceased pre-2007)

Ratio Decidendi

The court could admit extrinsic evidence under the armchair principle to determine the testator's intention, the reference to "four nieces" was a false descriptive error which did not vitiate the gift, and consequently the court rectified clause 4(b) to identify the residuary beneficiaries as the four children of the testator's niece (Dawn Chalklen). S31 Wills Act 2007 was inapplicable as the testator died in 1988.

Court Disposition

Application granted; clause 4(b) rectified to identify residuary beneficiaries as the four children of the testator's niece (Mrs Dawn Chalklen).

Orders

  • Delete the words "such of the children of my four nieces" in clause 4(b) and replace with "such of the four children of my niece" so clause 4(b) reads: "To pay the balance of my residuary estate to such of the four children of my niece (all of whom currently reside in Perth)"
  • A sealed copy of the rectification order to be permanently annexed to the grant of probate