PUBLIC TRUST V FLOWERS HC AK CIV-2010-404-7145

PUBLIC TRUST V FLOWERS HC AK CIV-2010-404-7145 3 March 2011Judgment: 3 March 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-7145UNDER the Wills Act 2007IN THE MATTER OF the estate of KATHLEEN REGINA KIMFLOWERSBETWEEN PUBLIC TRUSTPlaintiffAND JAMES DESMOND FLOWERSFirst DefendantAND PHILIP GEORGE REVELL ASLITIGATION GUARDIAN FORALEXANDER PETER WILLIAMCHAPMANSecond DefendantCIV-2009-404-5501AND BETWEEN IN THE ESTATE OF KATHLEENREGINA KIM FLOWERSDeceasedHearing: (on the papers)Counsel: G Harrison for the PlaintiffC Baker for the First DefendantP Revell for the Second DefendantJudgment: 3 March 2011 at 11:00 AMJUDGMENT OF WOODHOUSE JThis judgment was delivered by me on 3 March 2011 at 11:00 a.m. pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy RegistrarCounsel / Solicitors: Mr G Harrison, Barrister, Auckland Ms S Ball, Price Baker Berridge, Solicitors, Henderson Mr P Revell, Corban Revell, Solicitors, Waitakere City Mr J Gates, Public Trust, Lower Hutt[1] Public Trust has applied for probate in solemn form of the will of Mrs Kathleen Flowers who died on 17 July 2009.[2] The application has been made because of a simple error that occurred on 31 October 2008 when Mrs Flowers signed the will at an office of Public Trust. Mirror wills had been prepared for Mrs Flowers and her husband, the first defendant MrJames Flowers. Through inadvertence, the second page of the two page will signedby Mrs Flowers was a duplicate of the second page of Mr Flowers' will.[3] The statement of claim seeks orders under s 14 or s 31 of the Wills Act 2007 in addition to the order granting probate. The proceeding has been served on Mr Flowers and on the second defendant, Mr Revell, who was appointed litigationguardian for Alexander Chapman, a child of Mrs Flowers. I am satisfied from theevidence that there is no other person who may have an interest. Mr Flowers hasconsented to a grant of probate in solemn form and Mr Revell, for AlexanderChapman, does not oppose the application. This has enabled the application toproceed without need for a formal hearing, although relevant matters have beendiscussed with counsel at conferences.[4] There is an affidavit from the Public Trust officer who took the instructions from Mr and Mrs Flowers, drafted their wills, consulted with them again and produced the wills in final form for completion. I am satisfied from this affidavitthat there was a simple error as described above; the second page of Mrs Flowers' will is the second page intended for Mr Flowers' will. The Public Trust officer has,in addition, produced a copy of what was intended as the second page of MrsFlowers' will.[5] The will as signed by Mrs Flowers is as follows, in relevant respects.[6] Page 1 is as intended and has been dated and initialled by Mrs Flowers and the two witnesses who have signed on page 2. Clause 6 is the last clause on page 1 and appears in full on page 1. Clause 6 contains the primary gift of residue to Mr Flowers if he survived Mrs Flowers by 30 days. This provision has come into effect.Page 1 of the will, as a matter of fact, contains all necessary provisions of a substantive nature.[7] Page 2 is headed "Will of JAMES DESMOND FLOWERS".[8] Page 2 of the will has clauses numbered 8 to 11. There is no clause 7. Clauses 8 and 10 contain gifts over of residue. The named beneficiaries are identical to the named beneficiaries in clauses 7 and 9 of the second page intended for MrsFlowers' will, but the descriptions of the relationships of the beneficiaries to MrsFlowers are inaccurate. For example, clause 10.1 in the document as signed containsa gift to "my wife's cousin Melissa Phillips". This should have said "to my cousinMelissa Phillips".[9] The remaining error is that the typewritten attestation clause is: "SIGNED byJAMES DESMOND FLOWERS in our presence and witnessed by us in hispresence". The signature of the testator is that of Mrs Flowers, and the signatures ofthe witnesses are the signatures of the two Public Trust officers who initialled the first page.[10] The application under s 14 of the Wills Act 2007 to have the will declared valid does not apply. Section 14 is directed to documents intended as wills butwhich fail to comply with the formal requirements specified in s 11. They are that awill must be in writing and it must be signed and witnessed as specified in ss 11(3)and (4). These requirements were met.[11] There is the alternative application under s 31. Section 31 provides: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.[12] I am satisfied that s 31 applies, on both grounds set out in s 31(1). Section 31 has been applied in broadly similar circumstances in, for example, Re Ioana1 and Re Smart2.[13] The formal order is as follows:(a) Probate of the will of Kathleen Regina Kim Flowers, being the will dated 31 October 2008, and being the document filed in this Courtwith the original application without notice for probate, is herebygranted subject to the following amendments to page 2 of the will:Delete the words "Will of JAMES DESMOND FLOWERS" at the top of the page and substitute "Will of KATHLEEN REGINAKIM FLOWERS".Delete clause 8 and substitute, as clause 7:Further Gift of ResidueI GIVE –My residuary estate to be divided equally per capita among my sons DOMINIC JAMES FLOWERS and ALEXANDER PETER WILLIAM CHAPMAN and my husband's sonNATHANIEL JAMES KEATS-FLOWERS living at my death who reach the age of 20 years. However, if this gift to any such beneficiary does not take effect THEN any benefit to which that beneficiary would have been entitled is to be taken equally by those of his children who are living at the death of the survivor of us.Re-number clause 9 as clause 8.Delete clause 10 and substitute, as clause 9:Further Gifts of ResidueMy Trustee shall distribute my residuary estate as follows:1 HC Auckland, CIV 2009-404-5527, 27 October 2009, Allan J.2 HC Palmerston North, CIV 2010-454-112, 30 April 2010, McKenzie J.9.1 As to a ½ share to my cousin MELISSA PHILLIPS if she survives me.9.2 As to a ½ share to my husband's sister KATRINA TREGONING if she survives me.9.3 If the trusts of one share shall fail, my Trustee shall add that share to the other share.Re-number clause 11 as clause 10.Delete the attestation clause "SIGNED by JAMES DESMOND FLOWER in our presence and witnessed by us in his presence" and substitute "SIGNED by KATHLEEN REGINA KIM FLOWERS in our presence and witnessed by us in her presence".Procedure[14] Public Trust proceeded with an application for probate in solemn form following the minute of Hugh Williams J of 29 March 2010. For the reasons set outin that minute the Judge said: "Public Trust should give consideration to whether it should follow the Probate in Solemn Form procedure".[15] This was understandable because the plaintiff had initially sought to deal with the problem by filing a without notice interlocutory application and without relevant evidence. However, there was no formal direction of the Court that the matter had to proceed in solemn form. The first requirement was to give notice to those who were or might be affected and to provide evidence.[16] As matters turned out in this case, once notice had been given to interested parties, and once evidence had been provided, it was possible to deal with the application on the papers. As this case illustrates, it may be possible to deal with problems of this nature by interlocutory application with evidence and on notice, rather than by a formal proceeding with a statement of claim for probate in solemnform. However, that will not always be the case. These matters are more fully discussed by McKenzie J in Re Armstrong.3_______________________________ Peter Woodhouse J3 HC Wellington, CIV 2008-435-95, 31 July 2008. And see also Re Smart HC Palmerston North, CIV 2010-454-112, 30 April 2010, where McKenzie J was able to proceed on a without notice application having received consent of interested parties.