RE ESTATE OF DAVID ARTHUR WILLIAMSON [2022] NZHC 1397

RE ESTATE OF DAVID ARTHUR WILLIAMSON [2022] NZHC 1397

The will as drafted created a partial intestacy because clause 8 failed to dispose of the residuary estate on the death of the surviving spouse; s32 could not supply the intended disposition; evidence from the drafting solicitor established that the will did not give effect to the will‑maker's instructions and s31(1)(b) authorised correction of the will; the court ordered paragraph 8 replaced to effect the testator's intention that income be paid to the wife during life and the residuary capital pass to daughter Susan on the wife's death (with survivorship contingencies).

Citation
[2022] NZHC 1397
Parties
Deceased: David Arthur Williamson; Applicant and Solicitor and Executor and Trustee: John Graham Turrall; Surviving Spouse and Beneficiary: Elizabeth Anne Williamson; Daughter and Beneficiary: Susan
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 June 2022
Procedural Posture
Application Under Wills Act 2007 to Correct a Will (rectification) / Originating Application (proceeded by Formal Proof); Judgment
Outcome
Order made under s31 Wills Act 2007 correcting the Will of David Arthur Williamson (dated 25 January 2017) by replacing paragraph 8 to carry out the will‑maker's intentions
Legal Topics
Rectification of Wills, Interpretation of Wills, Partial Intestacy, Testamentary Intentions
Wills and Estates Succession Law Trusts Rectification of Wills Interpretation of Wills Partial Intestacy Testamentary Intentions

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Parties

David Arthur Williamson

Deceased

John Graham Turrall

Applicant and Solicitor and Executor and Trustee

Elizabeth Anne Williamson

Surviving Spouse and Beneficiary

Susan

Daughter and Beneficiary

Procedural Posture

Application Under Wills Act 2007 to Correct a Will (rectification) / Originating Application (proceeded by Formal Proof); Judgment

Legal Issues

  1. 1 Whether the will created a partial intestacy by failing to dispose of the residuary estate on the death of the surviving spouse
  2. 2 Whether s32 Wills Act 2007 permits use of external evidence to interpret the will in this case
  3. 3 Whether s31(1)(b) Wills Act 2007 authorises correction of the will to give effect to the will‑maker's instructions

Ratio Decidendi

The will as drafted created a partial intestacy because clause 8 failed to dispose of the residuary estate on the death of the surviving spouse; s32 could not supply the intended disposition; evidence from the drafting solicitor established that the will did not give effect to the will‑maker's instructions and s31(1)(b) authorised correction of the will; the court ordered paragraph 8 replaced to effect the testator's intention that income be paid to the wife during life and the residuary capital pass to daughter Susan on the wife's death (with survivorship contingencies).

Court Disposition

Order made under s31 Wills Act 2007 correcting the Will of David Arthur Williamson (dated 25 January 2017) by replacing paragraph 8 to carry out the will‑maker's intentions

Orders

  • Will of David Arthur Williamson dated 25 January 2017 is corrected by replacing paragraph 8 with the text ordered by the Court to provide that the residuary estate is converted to cash, invested, income paid to wife Elizabeth Anne Williamson for life and on her death (or if she predeceases) the residuary capital to...
  • Leave reserved for counsel to file a memorandum if necessary as to the precise form of the correction