MARFELL & MARFELL v MARFELL [2015] NZHC 2714

MARFELL & MARFELL v MARFELL [2015] NZHC 2714

A clear drafting error was established and the prior will and surrounding text demonstrated the testator's intention to include both income and capital for the residuary beneficiaries; with their consent and pursuant to s 31 Wills Act 2007 the court was empowered to correct the will by inserting 'and capital' after...

Source-derived case information.

Citation
[2015] NZHC 2714
Parties
Plaintiff: Francis William Marfell; Plaintiff: Peter Gerard Marfell; First Defendant: Denis John Marfell
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 November 2015
Procedural Posture
Application for Probate in Solemn Form Under Wills Act 2007 / Application for Correction of Will Under S 31 Decided on the Papers
Outcome
Application granted; will amended to reflect testator's intention
Legal Topics
Rectification of Will, Correction of Drafting Error, Construction of Testamentary Instruments, Section 31 Wills Act 2007
Wills and Estates Probate Succession Law Rectification of Will Correction of Drafting Error Construction of Testamentary Instruments Section 31 Wills Act 2007

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Summary, issues, holding and outcome

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Parties

Francis William Marfell

Plaintiff

Peter Gerard Marfell

Plaintiff

Denis John Marfell

First Defendant

Procedural Posture

Application for Probate in Solemn Form Under Wills Act 2007 / Application for Correction of Will Under S 31 Decided on the Papers

Legal Issues

  1. 1 Whether the court may correct a will under s 31 of the Wills Act 2007
  2. 2 Whether a drafting error exists in clause 5.1 omitting reference to capital
  3. 3 Whether surrounding evidence demonstrates the testator's intention

Ratio Decidendi

A clear drafting error was established and the prior will and surrounding text demonstrated the testator's intention to include both income and capital for the residuary beneficiaries; with their consent and pursuant to s 31 Wills Act 2007 the court was empowered to correct the will by inserting 'and capital' after 'income' in clause 5.1.

Court Disposition

Application granted; will amended to reflect testator's intention

Orders

  • Rectify the will of Patricia Mary Hoult by inserting the words "and capital" after the word "income" in clause 5.1; application under s 31 Wills Act 2007 granted; matter disposed on the papers without further notice.