IN THE ESTATE OF MARY LOUISA HANSEN HC HAM CIV 2011-419-001249

IN THE ESTATE OF MARY LOUISA HANSEN HC HAM CIV 2011-419-001249

The appointment clause was void for uncertainty as drafted; the Court will correct the will under s 31 by substituting a clause appointing the partners of the firm at the date of death (thereby identifying the executors) and retaining the testator's precatory wish that two and only two of those partners prove the will and act initially, because that substitution gives effect to the testator's intent and removes the uncertainty; the court may decide the application on the papers in these circumstances.

Citation
openlaw-09aaa855_bb81_4bf4_8751_9233eefa9328.pdf
Parties
Deceased: Mary Louisa Hansen; Applicant: Simon Redding Makgill; Applicant: Matthew Philip Hanna; Applicant: Lisa Julie Ware
Court
Unknown Court
Jurisdiction
New Zealand
Judgment Date
9 November 2011
Procedural Posture
Application Under S 31 Wills Act 2007 to Correct a Will / Application Decided on the Papers
Outcome
Application granted in part; original appointment clause declared void for uncertainty and deleted; substituted clause ordered
Legal Topics
Will Correction Under S 31 Wills Act 2007, Construction of Appointment Clauses, Certainty in Appointment of Executors, Precatory Wishes
Wills and Probate Trusts Equity Will Correction Under S 31 Wills Act 2007 Construction of Appointment Clauses Certainty in Appointment of Executors Precatory Wishes

Case Brief

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Parties

Mary Louisa Hansen

Deceased

Simon Redding Makgill

Applicant

Matthew Philip Hanna

Applicant

Lisa Julie Ware

Applicant

Procedural Posture

Application Under S 31 Wills Act 2007 to Correct a Will / Application Decided on the Papers

Legal Issues

  1. 1 Whether the appointment clause 'any two of the persons who at the date of my death are partners in the firm of Lewis' is void for uncertainty
  2. 2 Whether the court may correct the will under s 31 Wills Act 2007 on the papers without further evidence of the will-maker's instructions
  3. 3 Whether substituting a clause appointing the firm as a whole qualified by a precatory wish that only two partners act resolves the uncertainty

Ratio Decidendi

The appointment clause was void for uncertainty as drafted; the Court will correct the will under s 31 by substituting a clause appointing the partners of the firm at the date of death (thereby identifying the executors) and retaining the testator's precatory wish that two and only two of those partners prove the will and act initially, because that substitution gives effect to the testator's intent and removes the uncertainty; the court may decide the application on the papers in these circumstances.

Court Disposition

Application granted in part; original appointment clause declared void for uncertainty and deleted; substituted clause ordered

Orders

  • The original appointment clause is deleted and in its place the following clause is inserted: I appoint as my executors and trustees the partners at the date of my death in the firm of Lewis', solicitors at Cambridge (in this will called 'my executors') and I express the wish that two and only two of those partners...