STOKES V STOKES [2021] NZHC 2254

STOKES V STOKES [2021] NZHC 2254

The Court held s31 applied: evidence demonstrated the general term "nephews" did not reflect the testator's intention and the will was corrected to make clear the residue was to be divided among the sons of David Stokes as specified.

Source-derived case information.

Citation
[2021] NZHC 2254
Parties
Plaintiff (executor): Gregory David Stokes; Plaintiff (executor): Bevan James Stone; First Defendant (beneficiary): Gregory David Stokes; First Defendant (beneficiary): Andrew Mark Stokes; First Defendant (beneficiary): Errol Peter Stokes; First Defendant (beneficiary): Robert Harold Stokes; First Defendant (beneficiary): David John Stokes; First Defendant (beneficiary): Zeke Sinclair Stokes; Second Defendant (beneficiary): Peter Stokes; Second Defendant (beneficiary): Noel Stokes; Second Defendant (beneficiary): Bryan Stokes; Second Defendant (beneficiary): Jason Stokes; Second Defendant (beneficiary): Paul Stokes
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 August 2021
Procedural Posture
Application for Solemn Probate and Correction/interpretation of a Will / Determined on the Papers; Judgment Delivered 30 August 2021
Outcome
Probate in solemn form granted and will corrected to construe "nephews" as the sons of David Stokes
Legal Topics
Will Construction, Correction of Wills (s31 Wills Act 2007), Use of External Evidence (s32 Wills Act 2007), Beneficiary Entitlement, Solemn Probate
Wills and Estates Probate Succession Law Will Construction Correction of Wills (s31 Wills Act 2007) Use of External Evidence (s32 Wills Act 2007) Beneficiary Entitlement Solemn Probate

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Parties

Gregory David Stokes

Plaintiff (executor)

Bevan James Stone

Plaintiff (executor)

Gregory David Stokes

First Defendant (beneficiary)

Andrew Mark Stokes

First Defendant (beneficiary)

Errol Peter Stokes

First Defendant (beneficiary)

Robert Harold Stokes

First Defendant (beneficiary)

David John Stokes

First Defendant (beneficiary)

Zeke Sinclair Stokes

First Defendant (beneficiary)

Peter Stokes

Second Defendant (beneficiary)

Noel Stokes

Second Defendant (beneficiary)

Bryan Stokes

Second Defendant (beneficiary)

Jason Stokes

Second Defendant (beneficiary)

Paul Stokes

Second Defendant (beneficiary)

Procedural Posture

Application for Solemn Probate and Correction/interpretation of a Will / Determined on the Papers; Judgment Delivered 30 August 2021

Legal Issues

  1. 1 Whether the word "nephews" in the 2006 will encompassed the sons of Richard Stokes
  2. 2 Whether s31 Wills Act 2007 authorises correction because the will does not give effect to the will-maker's instructions
  3. 3 Whether s32 Wills Act 2007 allows use of external evidence to interpret "nephews"

Ratio Decidendi

The Court held s31 applied: evidence demonstrated the general term "nephews" did not reflect the testator's intention and the will was corrected to make clear the residue was to be divided among the sons of David Stokes as specified.

Court Disposition

Probate in solemn form granted and will corrected to construe "nephews" as the sons of David Stokes

Orders

  • Grant probate in solemn form of the Will of William John Stokes dated 9 October 2006
  • Interpret "nephews" in the Will to mean the sons of David Stokes with the residue divided into five shares to be distributed: (i) Gregory David Stokes one share; (ii) Andrew Mark Stokes one share; (iii) Errol Peter Stokes one share; (iv) Robert Harold Stokes one share; and (v) one share to be divided equally between...