IN RE ESTATE OF KAMO [2020] NZHC 474

IN RE ESTATE OF KAMO [2020] NZHC 474

The court held s32 was inapt because words were omitted rather than ambiguous; s31 permits correction where a will does not reflect the will-maker's instructions; evidence of the drafter's notes established that the testator did not intend to restrict the scholarship to income only; correcting clause 3(b) to permit use of capital and income was necessary to avoid a perpetuities failure and to give effect to the testator's intentions.

Citation
[2020] NZHC 474
Parties
Applicant/executor and Trustee: Public Trust; Deceased/will Maker: Minnie Te Miri Kamo
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 March 2020
Procedural Posture
Wills Act Application / Will Interpretation and Correction / Application for Declaration and Correction Under Ss 31 and 32 Determined on the Papers
Outcome
Application granted: will corrected under s31 Wills Act 2007
Legal Topics
Will Interpretation, Correction of Will, Rule Against Perpetuities, Charitable Trust Status, Use of External Evidence
Wills and Estates Trusts Perpetuities Charities Law Will Interpretation Correction of Will Rule Against Perpetuities Charitable Trust Status +1 more

Case Brief

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Parties

Public Trust

Applicant/executor and Trustee

Minnie Te Miri Kamo

Deceased/will Maker

Procedural Posture

Wills Act Application / Will Interpretation and Correction / Application for Declaration and Correction Under Ss 31 and 32 Determined on the Papers

Legal Issues

  1. 1 Whether the clause creating a scholarship trust is charitable
  2. 2 Whether the trust offends the rule against perpetuities because it limits distributions to income
  3. 3 Whether s32 Wills Act 2007 (external evidence) or s31 (correction) permits remedial change

Ratio Decidendi

The court held s32 was inapt because words were omitted rather than ambiguous; s31 permits correction where a will does not reflect the will-maker's instructions; evidence of the drafter's notes established that the testator did not intend to restrict the scholarship to income only; correcting clause 3(b) to permit use of capital and income was necessary to avoid a perpetuities failure and to give effect to the testator's intentions.

Court Disposition

Application granted: will corrected under s31 Wills Act 2007

Orders

  • Delete the words "the net income thereof shall be utilised on an annual basis" from clause 3(b) of the will and replace with "the capital and income shall be used"