ESTATE OF ROBERT WILLIAM BLAKIE HC DUN CIV-2011-412-465

ESTATE OF ROBERT WILLIAM BLAKIE HC DUN CIV-2011-412-465

The Court found the will did not give effect to the testator's clear intention due to a technical drafting defect in the executor appointment; under s31 of the Wills Act 2007 the Court may correct the will to effect that intention; given the estate facts and identified potential administrators the interests of justice justified a without notice determination and the will was corrected accordingly.

Citation
openlaw-9cac4e2d_e597_4cac_a72f_edeabe9c7200.pdf
Parties
Applicants: Applicants; Deceased: Robert William Blakie; Judge: A D MacKenzie J
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 August 2011
Procedural Posture
Application Under S31 Wills Act 2007 (correction of Will) / Hearing on the Papers; Application Made Without Notice; Judgment Delivered 19 August 2011
Outcome
Application allowed; clause 2 of the will corrected to reflect testator's intention; judgment endorsed with delivery time
Legal Topics
Will Correction, Executor Appointment, Without Notice Applications, High Court Rules R 7.46
Wills and Estates Civil Procedure Court Practice Will Correction Executor Appointment Without Notice Applications High Court Rules R 7.46

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Parties

Applicants

Applicants

Robert William Blakie

Deceased

A D MacKenzie J

Judge

Procedural Posture

Application Under S31 Wills Act 2007 (correction of Will) / Hearing on the Papers; Application Made Without Notice; Judgment Delivered 19 August 2011

Legal Issues

  1. 1 Whether clause 2 of the will should be corrected under s31 of the Wills Act 2007 to reflect the testator's intention to appoint two partners of Anderson Lloyd as executors
  2. 2 Whether the application could properly be dealt with without notice under High Court Rules r 7.46
  3. 3 Whether the present wording of the will validly appointed executors or contained a technical defect rendering the appointment invalid

Ratio Decidendi

The Court found the will did not give effect to the testator's clear intention due to a technical drafting defect in the executor appointment; under s31 of the Wills Act 2007 the Court may correct the will to effect that intention; given the estate facts and identified potential administrators the interests of justice justified a without notice determination and the will was corrected accordingly.

Court Disposition

Application allowed; clause 2 of the will corrected to reflect testator's intention; judgment endorsed with delivery time

Orders

  • Clause 2 of the will is corrected to read: "I appoint the partners at the date of my death in the firm of Anderson Lloyd, solicitors of Dunedin, to be the executors and trustees of this my Will and I express the wish that two and only two of them shall prove my Will and act initially in its trusts."
  • Registrar directed to endorse this judgment with a delivery time of 11am on 19 August 2011.