ESTATE WILLIAMSON [2017] NZHC 993

ESTATE WILLIAMSON [2017] NZHC 993 [16 May 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2017-485-413[2017] NZHC 993IN THE MATTER of section 31 of the Wills Act 2007AND IN THE MATTER of the ESTATE OF BRIAN MAXWELLWILLIAMSON of TokoruaHEATHER MARGARET WILLIAMSONApplicantOn the papersCounsel: R W OʼConnor for ApplicantJudgment: 16 May 2017JUDGMENT OF THOMAS J[1] Brian Maxwell Williamson died on or about 28 October 2016. He made a will on 24 February 2012 (the Will). The Will contains an obvious error which his wife, Heather Williamson, who is the sole executor of the Will, applies without notice to have corrected.[2] The application is supported by an affidavit from Mrs Williamson, as well as an affidavit from the legal executive who drafted the Will.[3] On 30 June 2004, Mr and Mrs Williamson each made a will which mirroredthe provisions in the other's will. They each appointed the other the sole executorand trustee and left the whole of their estate to the other. The wills provided that, if Mr or Mrs Williamson, as the case might be, did not survive the other, then the estate passed to their three children in equal shares.[4] One of the children of Mr and Mrs Williamson died in 2009. Mr and Mrs Williamson then decided to make new wills, Mrs Williamson says in exactly the same terms as the 2004 wills except excluding their deceased son. They both executed the new wills on 24 February 2012.[5] The legal executive who prepared the wills deposes that mirror wills were intended. However, an error arose in the Will as a result of a clerical error. The crucial provision reads as follows:2. SHOULD my wife HEATHER MARGARET WILLIAMSON be alive at the date of my death then I APPOINT my husband the sole executor and trustee of this my Will AND I GIVE the whole of my estate both real and personal of whatsoever nature or kind and wheresoever situate to my husband absolutely.[6] The effect of clause 2 of the Will is to render the Will a nullity because it appoints Mr Williamson's "husband" as executor and leaves the whole of the estate to his "husband". Clause 3 of the Will is operative only if Mrs Williamson does not survive Mr Williamson. It is obvious reference in clause 2 to "my husband" should have been to "my wife".[7] The two remaining children of Mr and Mrs Williamson have both consented to an order correcting the clerical error in the Will.Decision[8] I am satisfied it is appropriate in the circumstances to grant leave for the application to be made without notice to any other person.[9] I am also satisfied that the document dated 24 February 2012 appears to be a will, and it came into existence in New Zealand. I am satisfied the Will does notcarry out Mr Williamson's intentions because it contains a clerical error and does not give effect to Mr Williamson's instructions.[10] For these reasons, the application is granted and I make an order pursuant to s 31(2) of the Wills Act 2007 correcting the Will so as to carry out Mr Williamson'sinstructions by correcting clause 2 of the Will to read:2. SHOULD my wife HEATHER MARGARET WILLIAMSON be alive at the date of my death then I APPOINT my wife the sole executor and trustee of this my Will AND I GIVE the whole of my estate both real and personal of whatsoever nature or kind and wheresoever situate to my wife absolutely.Thomas JSolicitors:Hassall Gordon O'Connor & Cameron, Tokorua for Applicant