IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY CIV [2016] NZHC UNDER the Wills Act 2007

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY CIV [2016] NZHC 2123 UNDER the Wills Act 2007 IN THE MATTER IN THE ESTATE of an application to amend the will of Donald Owen Junge of Donald Owen Junge JUDITH LESLIE JUNGE Applicant Hearing: Counsel: On the papers PAB Mills for applicant KR Hulsebosch for beneficiaries and applicant in her capacity as a beneficiary Judgment: 8 September 2016 JUDGMENT OF FAIRE J Solicitors: To: Beach Law, Papamoa (J McDonnell) Harris Tate Ltd, Tauranga KJ Nally, Waitakere Estate of RO Junge [2016] NZHC 2123 [8 September 2016]

2 [1] Application is made by the widow of the late Donald Owen Junge who died at Tauranga on 24 November 2012, for orders in reliance on ss 31 and 32 of the Wills Act [2] Section 31 provides: 31 Correction (1) This section applies when the High Court is satisfied that a will does not carry out the will-maker's intentions because it contains a clerical error; or does not give effect to the will-maker's instructions. (2) The Court may make an order correcting the will to carry out the will-maker's intentions. [3] Section 32 provides: 32 External evidence (1) This section applies when words used in a will make the will, or part of it, (a) (c) (d) (e) meaningless; or ambiguous on its face; or uncertain on its face; or ambiguous in the light of the surrounding circumstances; or uncertain in the light of the surrounding circumstances. (2) The High Court may use external evidence to interpret the words in the will that make the will or part meaningless, ambiguous, or uncertain. (3) External evidence includes evidence of the will-maker's testamentary intentions. (4) The Court may not use the will-maker's testamentary intentions as surrounding circumstances under subsection (1)(d) or (e). [4] Ms JE McDonnell, a solicitor of Papamoa, took instructions from the applicant and the deceased to prepare their wills in February At the time, she was the principal of Coastal Law, which merged with Mount Law to become Beach Legal in 2008.

3 [5] Mr Junge s will, dated 3 March 2007, contains three errors, which the applicant invites the court to treat as clerical mistakes and which, therefore, engage s 31 of the Wills Act. [6] The first error is a lack of specificity in cl 3 of the appointment clause, in the will. [7] Clause 3 provides: I APPOINT the Principal of the legal firm known as Coastal Law now practising at 56 Motiti Road, Papamoa, or the firm or the entity which on the date of my death has succeeded to and carries on its practice ( appointer ) to be the executor and trustee of this my Will. [8] At the time the will was executed, Ms McDonnell was practising in Coastal Law and was the intended trustee and executrix of Mr Junge s will. At the time of Mr Junge s death, she had become a partner in the firm of Beach Legal. [9] This application seeks to correct the first error, so that cl 3 provides: I APPOINT Jennifer Elizabeth McDonnell of Papamoa, solicitor, to be the executor and trustee of this my Will. [10] The second error in the late Mr Junge s will appears in cl 6 of his will. Clause 6 provides: 6. I GIVE the balance of my estate both real and personal and wherever situated to my trustee UPON TRUST: 6.1 To convert into money hose parts of it not already consisting of money upon such terms as my trustee thinks fit; and 6.2 To pay my debts, funeral and testamentary expenses and all duties payable in respect of the whole of my dutiable estate whether actual or notional; and 6.3 To pay the residue to my wife should she survive me. 6.4 To divide the residue equally among my children Toni Katherine CATTON and Cameron Lloyd JUNGE living at my death as tenants in common in equal shares. [11] The error creates an ambiguity by virtue of cl 3 and cl 4 cl 6 of the will. Ms McDonnell, in her affidavit, deposes the applicant s will which was drafted

4 correctly, does not contain the same error. That is because, in cl 6 of her will, which should have been identical to her late husband s will, the equivalent provision provides in relation to the deceased s will, cl 6.4: 6.4 If my husband does not survive me, then to divide the reside equally among my children living at my death as tenants in common in equal shares. Ms McDonnell deposes that was what was intended by the deceased. [12] Associate Judge Bell has made orders as to directions as to service of this application, which includes service on all potential beneficiaries of the deceased s estate. [13] On 14 June 2016, a Deed of Family Arrangement was signed by the deceased s two children, the applicant s three children and the applicant. The deed confirms the deceased s children s consent to the applicant applying to the High Court to have their father s will corrected to provide the following: (a) That JE McDonnell be appointed the executor and trustee of the deceased s estate; That in respect of cl 6.4 the words be added if my wife does not survive me. [14] The deed also covered the third error. That error arises from the wording of cl 10 of the will, which provided: 10 I DESIRE that Coastal Law, Solicitors, be employed in proving my Will and in the transaction of any legal business arising upon the administration of the trusts thereof. [15] The Deed of Family Arrangement also consented to application being made so that the direction in cl 10 of the will was altered to be a direction that Beach Law Papamoa Ltd be retained to prove the deceased s will. [16] I am satisfied that all parties who have an interest in this application are in fact before the court and consent to the orders sought in the application.

5 [17] I am satisfied that the provisions of ss 31 and 32 of the Wills Act 2007 are properly engaged and that it is appropriate that orders be made. Section 31 sets out in statutory form, the rectification powers that the High Court has developed since the comments of Fisher J in re Jensen. 1 There is no need, in my judgment on this application, to review subsequent authorities. Suffice to say that having considered them, I am satisfied that the orders sought are appropriate in this case. [18] Accordingly, I make orders in term of the originating application as moved. [19] This judgment should now enable the appropriate application for probate in respect of the will of the deceased to be filed in the usual way. JA Faire J 1 Re Jensen [1992] 2 NZLR 506 at