BROWN AND ANOR HC NAP CIV-2010-441-648

BROWN AND ANOR HC NAP CIV-2010-441-648

The appointment clause was prima facie void for uncertainty but the solicitor's affidavit established the testatrix's intention such that s31(1)(b) authorises correction; accordingly the court ordered amendment of clause 2.1 to reflect the testatrix's intentions.

Citation
openlaw-933b67e6_3719_4cba_8590_b0fd16ba3955.pdf
Parties
First Applicant: Margaret Anne Brown; Second Applicants: Martin Roger Doole, Michael Charges Morgan, Gavin Ross John Thornton, Graham Paul Clifford Morgan and David Chan; Deceased: Eileen Hilda Calder
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 October 2010
Procedural Posture
Application Under Wills Act 2007 S31 to Amend Will / Judgment (on the Papers)
Outcome
Application granted; will corrected under s31(2) to replace clause 2.1 with specified wording.
Legal Topics
Will Rectification, Uncertainty in Wills, Correction Under S31 Wills Act 2007, Appointment of Executors
Wills and Estates Civil Procedure Will Rectification Uncertainty in Wills Correction Under S31 Wills Act 2007 Appointment of Executors

Case Brief

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Parties

Margaret Anne Brown

First Applicant

Martin Roger Doole, Michael Charges Morgan, Gavin Ross John Thornton, Graham Paul Clifford Morgan and David Chan

Second Applicants

Eileen Hilda Calder

Deceased

Procedural Posture

Application Under Wills Act 2007 S31 to Amend Will / Judgment (on the Papers)

Legal Issues

  1. 1 Whether clause appointing 'any one of the partners' is void for uncertainty
  2. 2 Whether s31(1)(b) of the Wills Act 2007 authorises correction to give effect to testatrix's intentions

Ratio Decidendi

The appointment clause was prima facie void for uncertainty but the solicitor's affidavit established the testatrix's intention such that s31(1)(b) authorises correction; accordingly the court ordered amendment of clause 2.1 to reflect the testatrix's intentions.

Court Disposition

Application granted; will corrected under s31(2) to replace clause 2.1 with specified wording.

Orders

  • Clause 2.1 of the Will is replaced with: 'I appoint my daughter MARGARET ANNE BROWN of Eskdale, 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 Executors") (and I express the wish that one and...
  • The application for probate is to be returned to the Registrar for further consideration.