ESTATE OF JEAN GARNER HC CHCH CIV-2012-409-002794

ESTATE OF JEAN GARNER HC CHCH CIV-2012-409-002794

The will contained a clerical error: clause 3.2 erroneously described the residue as 'twenty one (21)' parts while the enumerated dispositions totalled twenty parts; the evidence (solicitor's affidavit and conduct of the testator) established the testator's intention was twenty parts and a correction under s 31 was warranted; the court ordered deletion of 'twenty one (21)' and replacement with 'twenty (20)' and directed the registrar to consider probate of the corrected will.

Citation
openlaw-1c525bb0_606b_4f51_8e9e_89fbd3c93fbc.pdf
Parties
Deceased: Jean Garner; Beneficiary and Consenting Next of Kin: John Garner
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 February 2013
Procedural Posture
Application Under S 31 Wills Act 2007 / Application for Correction of Will and Grant of Probate Dealt With on the Papers
Outcome
Order made under s 31 Wills Act 2007 correcting the will by deleting 'twenty one (21)' and replacing it with 'twenty (20)'; registrar directed to consider probate of the corrected will.
Legal Topics
Clerical Error Correction, Rectification of Will, Probate Application, Interpretation of Testamentary Intention, Without Notice Application
Wills and Estates Probate Trusts Civil Procedure Clerical Error Correction Rectification of Will Probate Application Interpretation of Testamentary Intention +1 more

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Parties

Jean Garner

Deceased

John Garner

Beneficiary and Consenting Next of Kin

Procedural Posture

Application Under S 31 Wills Act 2007 / Application for Correction of Will and Grant of Probate Dealt With on the Papers

Legal Issues

  1. 1 Whether the will contains a clerical error as to the number of residue parts
  2. 2 Whether the court should correct the will under s 31 Wills Act 2007 to give effect to the testator's intentions
  3. 3 Whether the application can be dealt with without notice

Ratio Decidendi

The will contained a clerical error: clause 3.2 erroneously described the residue as 'twenty one (21)' parts while the enumerated dispositions totalled twenty parts; the evidence (solicitor's affidavit and conduct of the testator) established the testator's intention was twenty parts and a correction under s 31 was warranted; the court ordered deletion of 'twenty one (21)' and replacement with 'twenty (20)' and directed the registrar to consider probate of the corrected will.

Court Disposition

Order made under s 31 Wills Act 2007 correcting the will by deleting 'twenty one (21)' and replacing it with 'twenty (20)'; registrar directed to consider probate of the corrected will.

Orders

  • Delete the phrase 'twenty one (21)' in subclause 3.2 and replace it with 'twenty (20)'
  • Registrar directed to consider the application for probate of the corrected will