ESTATE OF WINIFRED ISABELLA O’CARROLL [2017] NZHC 1797

ESTATE OF WINIFRED ISABELLA O’CARROLL [2017] NZHC 1797

The Court was satisfied the unsigned April 2011 draft will (the Unsigned Will) reflected the deceased's settled testamentary intentions except for clause 5.1 which incorrectly recorded equalised loans; accordingly the Unsigned Will was declared the valid last will under s14 and clause 5.1 was corrected under s31 to record $100,000 to each nephew and $50,000 to each niece; clause 7(b) was also rectified to replace "nieces and nephews and grand-nieces and grand-nephews" with "children and grandchildren" to reflect the deceased's intention to limit the residuary class to the children and grandchildren of William and Kenneth McCutcheon.

Citation
[2017] NZHC 1797
Parties
Applicant: Alistair Kenneth McCutcheon; Residuary Beneficiaries / Interested Parties: Children and grandchildren of the late William Ross McCutcheon and the late Kenneth Leith McCutcheon; Potential Beneficiaries / Interested Parties: Children and grandchildren of the late Lena Mary Rae; Deceased: Winifred Isabella O'Carroll
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 August 2017
Procedural Posture
Probate and Will Validation / Application Under Ss 14 and 31 Wills Act 2007; Judgment and Orders Made
Outcome
Unsigned April 2011 draft will declared the valid last will and testament and may be admitted to probate; Unsigned Will amended under s31 to correct clause 5.1 and clause 7(b); costs awarded from the estate.
Legal Topics
Will Validation Under S14, Rectification of Wills Under S31, Testamentary Intention, Construction of Wills, Costs in Probate Proceedings
Wills and Succession Probate Equity Will Validation Under S14 Rectification of Wills Under S31 Testamentary Intention Construction of Wills Costs in Probate Proceedings

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Parties

Alistair Kenneth McCutcheon

Applicant

Children and grandchildren of the late William Ross McCutcheon and the late Kenneth Leith McCutcheon

Residuary Beneficiaries / Interested Parties

Children and grandchildren of the late Lena Mary Rae

Potential Beneficiaries / Interested Parties

Winifred Isabella O'Carroll

Deceased

Procedural Posture

Probate and Will Validation / Application Under Ss 14 and 31 Wills Act 2007; Judgment and Orders Made

Legal Issues

  1. 1 Whether the unsigned April 2011 draft will should be validated under s14 Wills Act 2007 as expressing the deceased's testamentary intentions
  2. 2 Whether clause 5.1 of the unsigned 2011 draft will should be corrected under s31 because it does not give effect to the will-maker's instructions
  3. 3 Whether the residuary clause (cl 7(b)) contained a drafting error and should be amended to reflect the intended class of beneficiaries

Ratio Decidendi

The Court was satisfied the unsigned April 2011 draft will (the Unsigned Will) reflected the deceased's settled testamentary intentions except for clause 5.1 which incorrectly recorded equalised loans; accordingly the Unsigned Will was declared the valid last will under s14 and clause 5.1 was corrected under s31 to record $100,000 to each nephew and $50,000 to each niece; clause 7(b) was also rectified to replace "nieces and nephews and grand-nieces and grand-nephews" with "children and grandchildren" to reflect the deceased's intention to limit the residuary class to the children and grandchildren of William and Kenneth McCutcheon.

Court Disposition

Unsigned April 2011 draft will declared the valid last will and testament and may be admitted to probate; Unsigned Will amended under s31 to correct clause 5.1 and clause 7(b); costs awarded from the estate.

Orders

  • The draft will in the name of Winifred Isabella O'Carroll (document 42 at p104 of the Burton affidavit) is declared to be the valid last will and testament and may be admitted to probate.
  • The Unsigned Will is amended by deleting clause 5.1 and substituting: I ACKNOWLEDGE I have loaned prior to the date of this my will FIFTY THOUSAND DOLLARS ($50,000) each to SHONA WINIFRED STODDART and GLYNIS LYNETTE SULLIVAN, and ONE HUNDRED THOUSAND DOLLARS ($100,000) each to KEITH ROSS MCCUTCHEON and ALISTAIR...