RE JOHNSON (DECEASED) HC WN CIV-2011-485-1186

RE JOHNSON (DECEASED) HC WN CIV-2011-485-1186

The will contained a clerical omission and failed to give effect to the testator's intentions because clauses 2 and 4-5 are irreconcilable; under s 31 Wills Act 2007 the court may correct the will to reflect the testator's intention, and the application could be heard without notice because the affected beneficiaries consented.

Citation
openlaw-f7181987_4e99_46a0_b230_4142d7e6d07f.pdf
Parties
Deceased: Arthur Victor Johnson; Applicant: Applicant; Proposed Executor/beneficiary: Max Thomas Johnson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 September 2011
Procedural Posture
Correction of Will Under Wills Act 2007 / Interlocutory Without Notice
Outcome
Application granted
Legal Topics
Correction of Will, Construction of Will, Clerical Error, Without Notice Interlocutory Application
Wills and Estates Succession Civil Procedure Correction of Will Construction of Will Clerical Error Without Notice Interlocutory Application

Case Brief

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Parties

Arthur Victor Johnson

Deceased

Applicant

Applicant

Max Thomas Johnson

Proposed Executor/beneficiary

Procedural Posture

Correction of Will Under Wills Act 2007 / Interlocutory Without Notice

Legal Issues

  1. 1 Whether the will can be corrected under s 31 of the Wills Act 2007
  2. 2 Whether the interlocutory application can be dealt with without notice under r 7.46(3)(e) of the High Court Rules
  3. 3 Whether the omission of the word 'month' and the failure to make clauses 4 and 5 subject to the limitation in clause 3 are clerical errors or failures to carry out the testator's intentions

Ratio Decidendi

The will contained a clerical omission and failed to give effect to the testator's intentions because clauses 2 and 4-5 are irreconcilable; under s 31 Wills Act 2007 the court may correct the will to reflect the testator's intention, and the application could be heard without notice because the affected beneficiaries consented.

Court Disposition

Application granted

Orders

  • Clause 3 of the will is amended to read: "If my said wife shall not survive me for the period of one calendar month then and only in such case, the following provisions (the rest of this clause and clauses 4 and 5) shall apply. I appoint Max Thomas Johnson (hereinafter called \"my trustee\") to be executor and...
  • Typographical correction: insert the word "month" after the words "one calendar" in clause 3.