BENSTEAD (DECEASED) HC WHA CIV-2010-488-599

BENSTEAD (DECEASED) HC WHA CIV-2010-488-599

Clause 3 was void for uncertainty because it attempted to appoint an unspecified member of a category; however, given the remedial purpose of the Act, the absence of substantive rights being affected, and precedents, the Court may correct the will without service where interests of justice require, by substituting a clause naming the partners of Regent Law at the date of death and directing that one partner prove the will and act initially as trustee, to give effect to the testator's intention.

Citation
openlaw-dec7599c_274b_4eb2_84df_371cd2656308.pdf
Parties
Testator/deceased: Eric George Benstead (deceased)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 December 2010
Procedural Posture
Application for Correction of Will / Judgment (on the Papers)
Outcome
Application to correct will granted; application to be dealt with without notice
Legal Topics
Correction of Will, Appointment of Executors, Service and Notice, Litigation Guardian, Certainty of Testamentary Dispositions
Wills and Estates Civil Procedure Correction of Will Appointment of Executors Service and Notice Litigation Guardian Certainty of Testamentary Dispositions

Case Brief

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Parties

Eric George Benstead (deceased)

Testator/deceased

Procedural Posture

Application for Correction of Will / Judgment (on the Papers)

Legal Issues

  1. 1 Whether clause appointing executors was void for uncertainty
  2. 2 Whether the application could be heard without serving notice on persons with priority (the grandchildren)
  3. 3 Whether the Court should correct the will to give effect to the testator's intention by validly appointing one partner of Regent Law as executor

Ratio Decidendi

Clause 3 was void for uncertainty because it attempted to appoint an unspecified member of a category; however, given the remedial purpose of the Act, the absence of substantive rights being affected, and precedents, the Court may correct the will without service where interests of justice require, by substituting a clause naming the partners of Regent Law at the date of death and directing that one partner prove the will and act initially as trustee, to give effect to the testator's intention.

Court Disposition

Application to correct will granted; application to be dealt with without notice

Orders

  • Application to be dealt with on a without notice basis
  • Clause 3 of the deceased's will dated 5 November 2009 is deleted and replaced with: "I appoint the Partners at the date of my death in the Firm or Regent Law presently at First Floor, Arnold Franks Building, corner Cameron & Carruth Streets, Whangarei as my Executors and Trustees (in this Will called my...