ALP V COLLINSON & ORS HC AK CIV 2005-404-3471

ALP V COLLINSON & ORS HC AK CIV 2005-404-3471 10 November 2005IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-3471IN THE MATTER OF The Estate of DOROTHY IDA ALP, late of Auckland, Retired, Deceased AND IN THE MATTER OF The Trustee Act 1956 BETWEEN JOHN ROBIN HOLMES, SOLICITOR OF AUCKLAND AS EXECUTOR OF THE ESTATE OF DOROTHY IDA ALP Applicant AND RAYMOND GRAHAM COLLINSON, CLIVE RONALD COLLINSON AND LYNETTE MAY FLORANCE COLLINSON First Respondents AND JOYCE LILLIAN CRUMP & OTHERS Second Respondents Hearing: 10 November 2005 Appearances: AR Gilchrest for Applicant H Fulton for First Respondents RA Hacking for Second Respondents Judgment: 10 November 2005JUDGMENT OF ASHER JSolicitors: Davenports City Law, PO Box 47500, Ponsonby RW Bell-Booth & Co., PO Box 33002, Takapuna Auckland Copy: AR Gilchrist, PO Box 5444 Wellesley Street, Auckland H Fulton, Barrister, PO Box 5577, Auckland RA Hacking, William Martin Chambers, 152 Anzac Avenue, Auckland 1001[1] This is an originating application for directions as to the correct interpretation of clause 4 of the probated Will of Dorothy Ida Alp. At issue is the interpretation of clause 4 of the deceased's Will. It reads as follows:4. I GIVE DEVISE AND BEQUEATH all of my estate both real and personal of whatever nature and description and wherever situated unto my Trustees UPON TRUST to pay thereout my just debts, funeral and testamentary expenses and to stand possessed of the residue of such of them my nephews and niece including RAYMOND GRAHAM COLLINSON of 211 Rangatira Road, Birkdale, CLIVE RONALD COLLINSON of Onerahi Whangarei and LYNETTE MAY FLORENCE COLLINSON of 46B Salisbury Road, Birkdale as are living at my death and if more than one as tenants in common in equal shares.[2] Counsel for the various parties involved have reached agreement as to appropriate orders. [3] The problem identified in clause 4 was that the trustees were to stand possessed of the residue for the deceased's " nephews and niece including ", two named nephews and one named niece. These were the nephews and niece known to the deceased. There are, however, in total 21 nieces and nephews (five nephews and 16 nieces). [4] The issue has been to reconcile the indication in the phrase "nephews and niece" that it is the two named nephews and one named niece that are contemplated as beneficiaries, with the word "including", which would naturally indicate that all nephews and nieces were in contemplation. The problem has been the insertion of the word "including" after the singular of the word "niece". [5] The matter can be viewed in two ways: a) First, "including" can be simply seen as having been put in by error, because it is common to have such a word in these sorts of clauses. The meaning in that context is that the word signifies only an intention that those who survive of the three named nephews and niece should benefit.b) The alternative is that the word "including" was used in the way it is sometimes used in statutory definitions and other definitions to signify a group which is no wider than the previous stated persons. In that context "including" can be seen to mean "such of". [6] Whichever approach is used, in my view, the intention is clear. The deceased had in mind the three named nephews and niece. Use of the singular word "niece" is quite inexplicable otherwise. Further, this interpretation is consistent with common sense; the intention of the deceased would appear to benefit the known nephews and niece rather than this very large group. To divide the estate of approximately $1 million amongst such a large group would be an expensive and ultimately rather meaningless exercise. [7] Thus, I am satisfied that I can make the orders sought by consent as follows: 1. That the provisions of clause 4 of the last Will of DOROTHY IDA ALP probate whereof was granted to the applicant on 17 May 2004 by this Honourable Court at Auckland under No. CIV 2004-404-2351 reading as follows:"4. I GIVE DEVISE AND BEQUEATH all of my estate both real and personal of whatever nature and description and wherever situated unto my Trustees UPON TRUST to pay thereout my just debts, funeral and testamentary expenses and to stand possessed of the residue of such of them my nephews and niece (sic) including RAYMOND GRAHAM COLLINSON of 211 Rangatira Road, Birkdale, CLIVE RONALD COLLINSON of Onerahi Whangarei and LYNETTE MAY FLORENCE COLLINSON of 46B Salisbury Road, Birkdale as are living at my death and if more than one as tenants in common in equal shares.shall be interpreted and construed to make the provision therein stated to the persons so named being the first respondents RAYMOND GRAHAM COLLINSON, CLIVE RONALD COLLINSON andLYNETTE MAY FLORENCE COLLINSON and does not make any provision for the second respondents being nieces and nephews of the said deceased. 2. That the costs of the applicant and of the first respondents and of the second respondents be paid from the estate of the said deceased... Asher J