Re Alexander [2019] NZHC 790

Re Alexander [2019] NZHC 790

The reference to the 2010 will in the codicil was a clerical error; the testator's intention was plain to appoint his children as executors of the operative 2012 will, and under s31 the Court corrected the codicil to refer to the 2012 will to give effect to that intention.

Citation
[2019] NZHC 790
Parties
Applicant: David John Alexander; Applicant: Phillipa Jean Kalin; Deceased: John Fettes Alexander; Executor: Warwick Lupton; Executor: James Coleman; Beneficiary: Jane Boon; Beneficiary: Bridget Alexander
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 April 2019
Procedural Posture
Application to Correct a Will Under S31 Wills Act 2007 / Judgment on Application (on the Papers)
Outcome
Order granted to correct the will under s31 of the Wills Act 2007
Legal Topics
Rectification, Clerical Error, Codicil, S31 Wills Act 2007
Wills and Estates Civil Procedure Rectification Clerical Error Codicil S31 Wills Act 2007

Case Brief

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Parties

David John Alexander

Applicant

Phillipa Jean Kalin

Applicant

John Fettes Alexander

Deceased

Warwick Lupton

Executor

James Coleman

Executor

Jane Boon

Beneficiary

Bridget Alexander

Beneficiary

Procedural Posture

Application to Correct a Will Under S31 Wills Act 2007 / Judgment on Application (on the Papers)

Legal Issues

  1. 1 Whether the codicil mistakenly referred to a revoked 2010 will instead of the operative 2012 will
  2. 2 Whether the error was clerical and amenable to correction under s31 of the Wills Act 2007 to give effect to the will-maker's intentions
  3. 3 Whether correcting the codicil would improperly revive a revoked will or alter the testator's intention

Ratio Decidendi

The reference to the 2010 will in the codicil was a clerical error; the testator's intention was plain to appoint his children as executors of the operative 2012 will, and under s31 the Court corrected the codicil to refer to the 2012 will to give effect to that intention.

Court Disposition

Order granted to correct the will under s31 of the Wills Act 2007

Orders

  • Order correcting the codicil to refer to the 2012 will so as to appoint David Alexander and Phillipa Kalin as executors and trustees
  • Order made as sought in the without notice originating application dated 25 February 2019