8 Aug 2023
Contemporaneous solicitor instructions and corroborating affidavits established the testator's clear intention to exclude Johnathon; accordingly the court, exercising its power under s31, corrected clause 4(e) to name the three intended children and, under s32, interpreted "any child" in the provisos as referring only to those named children.
27 Mar 2023
On the balance of probabilities the Court accepted the credible, consistent evidence of the solicitor (Mansfield) that the 10 August 2020 draft will reflected Jennifer's testamentary intentions and there was no reliable evidence of subsequent change of mind or incapacity; accordingly the draft will was validated under s14. As to Peter's will, extrinsic evidence established a clerical/drafting error in clause 9(b) and the testator's intention was that if his wife predeceased him his entire estate should vest in his children (with Brent's issue taking his share); the Court therefore interpreted…
14 Jun 2022
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).
21 Mar 2022
The will did not create a condition precedent requiring exclusive occupation by 'Canons' before vesting; 'exclusive use' reserved the benefit to the identified religious group but did not limit the ways the property could be used to benefit them; the Diocese accepted the gift and its temporary letting and application of rents to support diocesan priestly functions did not amount to a disclaimer or defeat the bequest; clause 6 was not triggered and the declaratory relief sought by the plaintiff fails.
30 Jul 2020
The will was interpreted under s32 and corrected under s31 to mean the executors are to hold the St Heliers property on trust for the purpose of providing financial security for the named survivors because no family trust existed and that construction best gives effect to the testator's intentions.
15 Apr 2019
The court held clause 5(a) vested in John on the testator's death (as previously determined), the plaintiff had no reasonable basis to believe the interpretation issue remained unresolved given the earlier settlement and multiple legal opinions, and the plaintiff commenced and continued proceedings in denial of that settlement and established law; accordingly indemnity costs were a permissible remedy though full indemnity was not awarded here due to insufficient particularisation of actual fees, and the plaintiff was ordered to pay enhanced costs (2B plus 50%) to the trustee and agreed costs…
1 Mar 2019
Clause 4 of the will required payment of just debts, funeral and testamentary expenses (including executors' reasonable legal costs) before ascertaining the residuary estate; therefore executors must deduct their reasonable costs as testamentary expenses prior to determining the residue and may not, by direction of this Court, charge their indemnity solely against Warwick's share; the application to direct full deduction from Warwick's share was declined, but executors remain entitled to indemnity in accordance with the will.
12 Dec 2018
On proper construction of the will read as a whole and applying established authority, the gifts in clause 5 vested in interest on the death of James Alexander McLean and were not contingent on the beneficiary surviving his wife Margaret Ruth McLean; any right to possession was postponed to allow the interposed life interest of the widow.
12 Jun 2018
On construction of the will as a whole the testatrix intended to provide for her son but the gift of the residue was properly read as an absolute gift to him subject only to discretionary directions; upon failure of the expressed trust the residue vested absolutely in Jordan and therefore formed part of his estate on his death (alternatively, in any event Jordan obtained an absolutely vested interest under Administration Act s78).
15 Mar 2018
Clause 9 was primarily a charitable (public/local community and needy persons in the Hauraki region) executory trust and sufficiently certain for that purpose; the specific provision for the testator's sister is non-charitable and the reference to nieces and nephews is uncertain; the non-delegation principle is not engaged because the trust expresses a clear general intention and sets out formation and governance; s 61B applies to validate the charitable trust and permit removal/modification of non-charitable or invalid elements with allowance for a compensatory provision for the sister and t…