HITCHCOCK ESTATE HC AK CIV-2010-404-388

HITCHCOCK ESTATE HC AK CIV-2010-404-388 4 March 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2010-404-388UNDER Wills Act 2007 section 31 GEORGE CONDOR HITCHCOCK Ex Parte Hearing: Ex Parte Judgment: 4 March 2010 at 3:00pmJUDGMENT OF HUGH WILLIAMS J [Re: Application for Probate]This judgment was delivered by The Hon. Justice Hugh Williams on4 March 2010 at 3:00pmpursuant to Rule 11.5 of the High Court Rules .. Registrar/Deputy RegistrarA There will be an order in accordance with the ex parte application under s 31 of the Wills Act 2007 substituting the date of 24 April 2007 for the date of 23 February 2007 in each of the codicils to the last will of the testator they being respectively dated 25 September 2008 and 22 November 2009.B The file is referred back to the Registrar to process the application for probate of the will dated 24 April 2007 and the two codicils in accordance with the order made under s 31 of the Wills Act 2007. _________________________________________________________________[1] The application for probate in the estate of the late George Condor Hitchcock of Auckland, retired Pathologist, has been referred to a Judge by Deputy Registrar Parker because the proposed executors of the estate, through counsel, have applied for an order under s 31 of the Wills Act 2007 correcting what they assert are clerical errors in two codicils to the will respectively dated 25 September 2008 and 22 November 2009. [2] The power for the Court to make such an order appears in s 31 of the Wills Act 2007 which reads:31 Correction(1) This section applies when the High Court is satisfied that a will does not carry out the will-maker's intentions because it – (a) contains a clerical error; or (b) does not give effect to the will-maker's instructions. (2) The Court may make an order correcting the will to carry out the will-maker's intentions.[3] The assertion that the codicils contain a clerical error in their reference to the date of the will itself arises in the following way: [4] The deceased's solicitor who had acted for him for some time said Dr Hitchcock made a will on 23 February 2007 and another on 24 April 2007. Through the solicitor, Dr Hitchcock made a codicil on 25 September 2008 stating, erroneously, that it was a codicil to the will of 23 February 2007. Dr Hitchcock, on 22 November 2009, made what appears to have been a holograph codicil. It, too, expressed itself as being a codicil to the will dated 23 February 2007. [5] The solicitor said it was a simple clerical error on his part to date the will mentioned in the codicil of 25 September 2008 as "23 February 2007" and that he suspects the testator simply carried the erroneous date forward into the codicil of 22 November 2009.[6] In their s 31 application the executors ask that the date of the will appearing in the two codicils be corrected for clerical error from 23 February 2007 to 24 April 2007. [7] It is clear the Court has power to make orders in those terms. The orders sought are almost identical to the orders made in In re Rhodes (deceased) (1914) 34 NZLR 190 where the date mentioned in the codicil was rejected as a result of which the codicil did not revive the earlier will but was treated as a codicil to a later will which was admitted to probate. The situation is also not unlike that dealt with by MacKenzie J in In re Armstrong (deceased) (HC Wellington Civ-2008-435-95, 31 July 2008). [8] In the case of Dr Hitchcock, it is clear that by the will dated 24 April 2007 he intended to revoke the will dated 23 February 2007: indeed, the will of 24 April 2007 says as much. [9] That the testator did not intend to revive the will dated 23 February 2007 by the later codicils is also clear from the scheme of the testator's testamentary disposition. [10] In his will dated 22 February 2007 he appointed his children as executors, made certain specific bequests including forgiveness of loans to his children, gave a life interest in the income of his estate to his widow and directed the residue of his estate be divided between his four children. It is noteworthy that three of those bequests are to the children personally while the fourth is to the only son's family trust. [11] However, in the will of 24 April 2007, while preserving the gift to the son's family trust, the residuary gifts to two of the daughters are now not to them personally but to their family trusts, both of which were "created by deed dated the 24 day of April 2007".[12] It is clear therefore that two of the testator's daughters had created family trusts the same day as the will was signed, and the will of 24 April 2007 intended to recognise that change in the personal circumstances of the two daughters. [13] Neither codicil disturbed that scheme of distribution. Thus there can be no doubt the testator did not intend to revive the will of 23 February 2007 by either codicil and when they both said that he confirmed "my said will" he must have been intending to refer to that dated 24 April 2007. [14] There will, therefore, be an order in accordance with the ex parte application under s 31 of the Wills Act 2007 substituting the date of 24 April 2007 for the date of 23 February 2007 in each of the codicils to the last will of the testator they being respectively dated 25 September 2008 and 22 November 2009. [15] The file is referred back to the Registrar to process the application for probate of the will dated 24 April 2007 and the two codicils in accordance with the order made under s 31 of the Wills Act 2007. .................................................................HUGH WILLIAMS J.Solicitors: Lovegroves, P O Box 25066 St Heliers, Auckland Copy for: L J Parker, Deputy Registrar of the High Court at Auckland