SMART HC PMN CIV-2010-454-112

SMART HC PMN CIV-2010-454-112

The application to correct the will under s 31 of the Wills Act 2007 was allowed because the clause contained an obvious clerical error inconsistent with the testatrix's intention, the only potentially affected parties had consented, and the interests of justice permitted the application to be dealt with without notice under r 7.46; the will was corrected by substituting "to my husband Dylan James Smart" for the erroneous words.

Citation
openlaw-99192e52_eb17_4090_aa3b_bafe802d0bef.pdf
Parties
Applicant/executor: Dylan James Smart; Deceased: Louise Francis Smart
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 April 2010
Procedural Posture
Application Under S 31 Wills Act 2007 (rectification of Will) / On the Papers Without Notice (application Under R 7.46 High Court Rules)
Outcome
Application allowed; will corrected under s 31 Wills Act 2007 and application properly dealt with without notice under r 7.46 High Court Rules
Legal Topics
Will Rectification, Intestacy, Without Notice Procedure, Construction of Wills
Wills and Succession Civil Procedure Will Rectification Intestacy Without Notice Procedure Construction of Wills

Case Brief

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Parties

Dylan James Smart

Applicant/executor

Louise Francis Smart

Deceased

Procedural Posture

Application Under S 31 Wills Act 2007 (rectification of Will) / On the Papers Without Notice (application Under R 7.46 High Court Rules)

Legal Issues

  1. 1 Whether the will could be corrected under s 31 of the Wills Act 2007
  2. 2 Whether the application could be heard without notice under r 7.46 High Court Rules
  3. 3 Whether the consent of potential intestacy beneficiaries dispensed with formal service

Ratio Decidendi

The application to correct the will under s 31 of the Wills Act 2007 was allowed because the clause contained an obvious clerical error inconsistent with the testatrix's intention, the only potentially affected parties had consented, and the interests of justice permitted the application to be dealt with without notice under r 7.46; the will was corrected by substituting "to my husband Dylan James Smart" for the erroneous words.

Court Disposition

Application allowed; will corrected under s 31 Wills Act 2007 and application properly dealt with without notice under r 7.46 High Court Rules

Orders

  • Order that the will of the deceased dated 27 May 2009 be corrected by deleting the words "to my wife Louise Francis Smart" and replacing those words with "to my husband Dylan James Smart"
  • Application allowed to be dealt with on a without notice basis under r 7.46 High Court Rules