RE SMITH (DECEASED) HC NWP CIV-2012-443-2

RE SMITH (DECEASED) HC NWP CIV-2012-443-2

The codicil contained a clerical error that produced an uncertainty inconsistent with the testatrix's clearly expressed intention; therefore, under s 31 of the Wills Act 2007 the court must correct the codicil by inserting the qualifying words so the will gives effect to the testatrix's intention, and the application may be dealt with without notice because it affects only the applicants.

Citation
openlaw-1a99cbe3_16d8_4b9f_8687_282272f78b26.pdf
Parties
Deceased/testator: Merla Smith; Applicants/executrices and Beneficiaries: Applicants (two daughters)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
29 May 2012
Procedural Posture
Probate/correction of Will (codicil) Under Wills Act 2007 / Without Notice Application to Correct Codicil
Outcome
Order made correcting the codicil under s 31 Wills Act 2007; application granted on a without notice basis
Legal Topics
Correction/rectification of Wills, Codicil, Clerical Error, Without Notice Application, Wills Act 2007 S 31
Wills and Estates Probate Correction/rectification of Wills Codicil Clerical Error Without Notice Application Wills Act 2007 S 31

Case Brief

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Parties

Merla Smith

Deceased/testator

Applicants (two daughters)

Applicants/executrices and Beneficiaries

Procedural Posture

Probate/correction of Will (codicil) Under Wills Act 2007 / Without Notice Application to Correct Codicil

Legal Issues

  1. 1 Whether the codicil contained a clerical error that defeated the testatrix's intention
  2. 2 Whether the court may correct the codicil under s 31 of the Wills Act 2007
  3. 3 Whether the application could properly be heard without notice

Ratio Decidendi

The codicil contained a clerical error that produced an uncertainty inconsistent with the testatrix's clearly expressed intention; therefore, under s 31 of the Wills Act 2007 the court must correct the codicil by inserting the qualifying words so the will gives effect to the testatrix's intention, and the application may be dealt with without notice because it affects only the applicants.

Court Disposition

Order made correcting the codicil under s 31 Wills Act 2007; application granted on a without notice basis

Orders

  • The codicil dated 15 November 2001 is corrected by inserting at the beginning of clause 4 of the will, as inserted by the codicil, the words: "if my said husband shall predecease me or fail to survive me as aforesaid".
  • The application is heard and determined without notice to any other person as the order will affect only the applicants.