Haldane v Haldane [2015] NZHC 352 (4 March 2015)

Last Updated: 11 March 2015

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000834 [2015] NZHC 352

IN THE MATTER	OF THE ESTATE OF JANET ANN HALDANE
BETWEEN	KENNETH NORMAN HALDANE AND BRETT ALLAN HALDANE Plaintiffs
AND	KENNETH NORMAN HALDANE AND BRETT ALLAN HALDANE Defendants

Submissions:	30 January 2015
Counsel:	M J Wallace and B Palliser for Plaintiffs/Defendants
Judgment:	4 March 2015

JUDGMENT OF GENDALL J (Dealt with on the papers)

Introduction

[1] Janet Ann Haldane (the deceased) died at Christchurch on 26 June 2014. The

parties to this proceeding are the executors and trustees of the deceased’s will dated

2 December 1996. They seek orders amending the will of the deceased pursuant to s 31 of the Wills Act 2007, so as to correct errors in her will and to give effect to what they say to be her true intentions.

[2] By a minute dated 20 November 2014 Associate Judge Osborne in this Court ordered that the proceeding and relevant documentation be served upon the defendants along with the deceased’s two other children, Kylie Anne Gordon (nee Haldane) and Kurt Norman Haldane. Service was duly effected. Each party served signed a document which included, inter alia, a paragraph which read “I consent to

_{the orders sought in the statement of claim”.}

HALDANE v HALDANE [2015] NZHC 352 [4 March 2015]

[3] The plaintiffs now effectively seek judgment by default, there having been no opposition to the relief sought in this proceeding.

What this proceeding seeks

[4] Two substantive changes in the deceased’s will are sought. The first is to correct the spelling of the deceased’s middle name, from “Anne” to “Ann”. The second set of changes are said to give effect to the intention of the deceased by correcting certain errors which are said to be obvious.

[5] The will as it currently stands, relevantly provides:

6. I GIVE DEVISE AND BEQUEATH all the rest and residue of my estate... into money with power in her absolute discretion ... such time as she shall think fit ...

(a) To pay the net annual income arising therefrom to my wife JANET ANNE HALDANE so long as she remains my widow

(b) After the death or remarriage of my said wife to hold the capital as well as the income thereof for such of my children as shall be living at my death and if more than one in equal shares as tenants in common PROVIDED HOWEVER that in the event...

11. I EMPOWER my Trustee JANET ANNE HALDANE

notwithstanding her office to purchase my estate...

12. I EMPOWER my Trustee JANET ANNE HALDANE to bid on her own behalf

[6] Quite plainly it seems odd and wrong that the deceased would, by her will, seek to dispose of her property to herself. Clearly it appears from material before the Court that, in preparing mirror wills for the deceased and her husband at the time, the first named plaintiff, an error was made in the deceased’s will by transposing two pages in the relevant part of her husband’s will (also signed on 2 December 1996) into the deceased’s will and vice versa. The applicants thus seek an order altering the will mutatis mutandis so that the erroneous references to herself are changed to refer to her husband, Kenneth Norman Haldane, with all gender specific references altered accordingly.

The procedural regime

[7] The plaintiffs seek judgment by default. This proceeding was filed on 3

November 2014. Recently the High Court Rules were amended to include within the originating application rubric, applications under ss 14 or 31 of the Wills Act.¹

However, because this proceeding was filed before that change came into effect, this proceeding was commenced by statement of claim pursuant to r 5.25.

[8] The plaintiffs now seek what they describe as judgment by default. This is sought on the basis that service has been effected in accordance with the directions of the court,² affidavits in support have been filed, and not only have no statements of defence or opposition been filed, but all parties served consent to the orders being made.

[9] This is a case where judgment by default may be entered if it is appropriate to do so. What is required is that I be satisfied of each cause of action.

Should the changes be made?

Introduction

[10] All changes sought in my view here are readily explicable. The deceased and her husband were in the process of executing mirror wills. This resulted in some drafting confusion, leading to the erroneous transposition of Mr Haldane’s name and some of his provisions into the deceased’s will. This occurred it seems because pages 2 and 3 of his mirror will were wrongly transposed (and signed) in the deceased’s will and vice versa with pages 2 and 3 of the deceased’s will. It is contended here that this explanation, coupled with the fact that all interested persons have consented to the alterations, provides ample grounds for the relief being

_granted.

¹ High Court Amendment Rules (No 2) 2014, r 8. The amendments were gazetted on

_{20 November 2014 and came into force on 1 January 2015 per r 2.}

² I note that there has been no affidavit of service of the statement of claim as is required under r

15.4(1). However, for present purposes, the acknowledgments of service that have been filed, signed by all parties directed to be served, supplant this requirement, in this proceeding.

[11] In considering this explanation, however, I need to give some recognition to the solemnity and respect that the law affords to all wills. And, in doing so, it is useful to traverse the relevant principles before applying them to the present case.

The Wills Act 2007 requirement for validity

[12] A will is valid if it either complies with the requirements of the Wills Act

2007 as to validity, or is declared valid by the Courts pursuant to its powers to do so.³ For a will to be valid under the Wills Act 2007 it must be in writing, it must be signed by or on behalf of the will-maker (in the will-maker’s presence) and must be properly witnessed.⁴ It is beyond question that these requirements are present here.

Section 31 of the Wills Act 2007

Introduction

[13] In New Zealand the concept of rectification has its modern origins in the dicta of Fisher J in Re Jensen where he recommended revisiting long-standing authority holding that there is no power to rectify a will in the absence of either fraud, or mistaken insertion of words without the testator’s knowledge.⁵ A legislative power to rectify, or correct, was recommended by the Law Commission in its project, Succession Law: A Succession (Wills) Act.⁶

[14] In particular, the Law Commission observed:⁷

C41 Sometimes a mistake creeps into a will unobserved by a testator and is not discovered until after the testator dies. Courts may be able to remedy such a mistake in construing the will. To give effect to the testator’s intention deduced from the entire will not by conjecture but with reasonable certainty, a court construing a will might supply omitted words and modify the words actually used...

...

C43 Section 28 is meant to give the courts a power in such cases to rectify a will. Courts would need to be satisfied that rectification

3. Wills Act 2007, s 7. The legislative requirements as to validity are set out in s 11. A will can, in certain circumstances, be declared valid under s 14.

⁴ _{Section 11.}

⁵ _{Re Jensen [1992] 2 NZLR 506 (HC) at 511–512.}

⁶ _{Law Commission Succession Law: A Succession (Wills) Act (NZLC R41, 1997) at 44–47.}

⁷ At 45–46.

was appropriate, for example, because a solicitor gave evidence that certain words were used in the draft and approved by the will– maker, but those words were accidentally omitted or transposed when the document was formalised...

[15] The section proposed by the Law Commission was subsequently enacted as s 31 of the Wills Act 2007, which relevantly 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—

(a) contains a clerical error; or

(b) 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.

[16] Before moving on to consider the application of s 31 to the present case, it is useful to contemplate precisely what Parliament sought to achieve by enacting s 31.

What was Parliament’s intention?

[17] The first reading of the Wills Bill, which was introduced on 8 September

2006, occurred on 10 October 2006. In moving that the Wills Bill be read for the first time, the Hon Clayton Cosgrove stated:⁸

The intention of the Wills Bill is to make the law clearer, ensure that better effect can be given to will-makers’ intentions, and make it easier for people to make wills. ... The Wills Bill therefore seeks to restate the law in a single statute in plain, modern language.

...

... A further problem is that wills are not always as clearly drafted as one might hope, and errors can slip in unnoticed. The court will be able to correct errors in certain cases, and make greater use of external evidence to interpret wills. Overall, these changes will operate to ensure that will- makers’ intentions are upheld and not frustrated by technicalities.

...

Wills are of practical day-to-day significance for all New Zealanders. A will is an instrument that expresses a person’s wishes after he or she dies, and enables that person to take care of his or her loved ones and property and

⁸ (10 October 2006) 634 NZPD 5557 (emphasis added).

assets. The proposed reforms will improve the legal framework for will- making. They will make the law easier for people to understand, and reduce the risk of a will-maker’s wishes being defeated by a badly drafted or incorrectly executed will, and will also allow better effect to be given to a will-maker’s intentions.

[18] A further salient remark in the first reading was made by the Hon Nicky

Wagner:⁹

People who have current wills and are still alive to consider the options can rest easy that they will not need to change their wills unless those wills are particularly badly drafted or full of errors—and, let us face it, if that is the case, they might be wise to make changes any way. Under the new bill the High Court has the ability to correct errors. It has a much higher power to correct errors and to use internal evidence to interpret wills for the prime reason of making sure that the will-makers are getting what was intended.

[19] The Bill was read a first time and referred to the Justice and Electoral Committee. The committee recommended no substantial change to cl 31 (what is now s 31). The Wills Bill was read a second time on 8 May 2007. The Hon Chris Auchinvole commented:¹⁰

The changes will affect only wills made after the bill comes into force, with two exceptions. The High Court can modify wills: it has the powers to correct errors in wills, and it can also use external evidence to interpret wills made before the bill comes into force. There is, my solicitor friends tell me, some danger in this, in that it gives the High Court the power to interpret the intention of the will-maker, previously known as the testator. That will continue as a vulnerability under this legislation

[20] Little was added to the discourse during the committee stage.¹¹ In the third reading several poignant comments were made. In particular, the Hon Lianne Dalziel remarked:¹²

To the extent that the bill modernises the substantive law relating to wills, it essentially follows the Law Commission’s proposals. These changes improve the legal framework for will-making. They make it easier for certain people to make wills and mitigate the risk of a will-maker’s wishes being undermined by a poorly drafted or executed will. Overall, they allow better effect to be given to will-makers’ intentions.

⁹ _{At 5557.}

¹⁰ _{(8 May 2007) 639 NZPD 8997.}

¹¹ (12 June 2007) 639 NZPD 9797; (19 June 2007) 640 NZPD 10006; (7 August 2007) 641 NZPD

_10875.

¹² (22 August 2007) 641 NZPD 11416 (emphasis added).

Wills speak for people who are no longer able to speak for themselves. Legislation that makes it clear what is required for an effective will eases the burden on the will-maker. Legislation that also offers avenues for overcoming defects in the will, when the will-maker is no longer able to do so for himself or herself, eases the burden on those who are left behind...

[21] Though ss 31 and 32 amounted to some of the more substantial changes, there was remarkably little debate on the breadth of the provisions, or their effect. That said, the debates do indicate that the intent was to make it easier to give effect to testamentary intent. Though that proposition does not go so far as to confer carte blanche upon the Courts to correct all errors, it was an important milestone in the modernisation and liberalisation of the law relating to wills.

Scope of the section

Perhaps the most concise statement of the reform heralded by s 31 is recorded in

Dobbie’s Probate and Administration Practice, where it is commented:¹³

Section 31 increases the traditional powers of the court in the following ways:

(a) in the case of a clerical error, the court is not limited to omitting or removing words;

(b) the court can “correct” the will which includes the powers to add in or substitute words or phrases inserted erroneously in a will, and extends to rewriting parts of the will;

(c) the court’s power does not appear to be restricted in any way by the fact that the will-maker or drafter has read over or approved the words inserted by error;

(d) the power to correct is not negated by the possibility that the meaning of the will could be significantly altered by the court’s correction;

(e) drafting errors or use of inappropriate language (either by the drafter or will-maker) can be corrected by the court. This includes careless drafting, the use of words in relation to which the drafter has failed to understand the instructions and the use of words which do not achieve the objective intended (perhaps through failure properly to understand the law).

13. John Earles and others Dobbie’s Probate and Administration Practice (6th ed, LexisNexis, Wellington, 2014) at 52 (citations omitted).

[22] Building on this, I think one of the most important mechanisms contained in s

31, and certainly the most germane to this case, is the ability to correct clerical errors. The scope of this power was considered recently by the Supreme Court in Marley v Rawlings, in relation to the equivalent UK legislation, the Administration of Justice Act 1982 (UK), s 20.¹⁴ Lord Neuberger, delivering the lead judgment of the Court, said:¹⁵

71 The best judicial summary of the effect of the cases so far decided on section 20(1)(a) was given by Blackburne J in Bell v Georgiou [2002] WTLR 1105 , para 8 (quoted in para 7-42 of Hodge on Rectification ):

“The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert ... The remedy is only available if it can be established not only that the will fails to carry out the testator's instructions but also what those instructions were.”

72 If, as a result of a slip of the pen or mistyping, a solicitor (or a clerk or indeed the testator himself) inserts the wrong word, figure or name into a clause of a will, and it is clear what word, figure or name the testator had intended, that would undoubtedly be a clerical error which could be rectified under section 20(1)(a) . It is hard to see why there should be a different outcome where the mistake is, say, the insertion of a wrong clause because the solicitor cut and pasted a different provision from that which he intended. Equally, if the solicitor had cut and pasted a series of clauses from a different standard form from that which he had intended, I do not see why that should not give rise to a right to rectify under section 20(1)(a) , provided of course the testator's intention was clear.

[23] The Court was then confronted with a contention that even if the definition of “clerical error” is as wide as articulated above, it surely is not wide enough to encompass a clerical officer giving a testator the wrong will.¹⁶ Lord Neuberger met this submission in the following terms:

75 I accept that the expression “clerical error” can have a narrow meaning, which would be limited to mistakes involved in copying or writing out a document, and would not include a mistake of the type that occurred in this case. However, the expression is not one with a precise or well- established, let alone a technical, meaning. The expression also can carry a wider meaning, namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing,, sending, organising the execution of, a document (save, possibly, to the extent that the activity involves some special expertise). Those are activities which are properly described as

¹⁴ _{Marley v Rawlings [2014] UKSC 2, [2015] AC 129.}

¹⁵ _{(emphasis added).}

¹⁶ At [74].

“clerical”, and a mistake in connection with those activities, such as wrongly filing a document or putting the wrong document in an envelope, can properly be called “A clerical error”.

[24] Lord Neuberger then went on to provide support for the notion that the wide meaning ought to be preferred.¹⁷ The United Kingdom Supreme Court’s decision was recently noted by MacKenzie J in Re Subramaniam, where a husband and wife had inadvertently signed each other’s wills.¹⁸ There, MacKenzie J considered that the issue could be solved by s 14 validation of the will prepared for the husband, but signed by the wife. However, MacKenzie J also observed, in reliance on R v Ioane, that s 31 provides an alternate avenue for achieving the same outcome, which was the course adopted in Marley v Rawlings.¹⁹

[25] As will be seen below, the approach the New Zealand Courts have so far taken to the issue of what constitutes a clerical error, has not been unduly narrow. There appears to have been a concerted effort to give effect to the purpose and intent of the new wills regime. This has signalled somewhat of a paradigm shift from the rigidity of the past. For my part, therefore, I see no reason to unduly delimit the scope of the remedy. Where a mistake is made in the course of clerical duties (potentially including an execution error), that is quite capable of falling within the auspices of s 31 and would be open to correction.

Approach to correction

[26] Re Segelman, a United Kingdom decision, held that when contemplating the exercise of the equivalent rectification provision, the Court was required to consider three questions:²⁰

First, what were the testator's intentions with regard to the dispositions in respect of which rectification is sought. Secondly, whether the will is so expressed that it fails to carry out those intentions. Thirdly, whether the will is expressed as it is in consequence of either (a) a clerical error or (b) a failure on the part of someone to whom the testator has given instructions in connection with his will to understand those instructions.

¹⁷ _{At [76]–[84].}

¹⁸ _{Re Subramaniam [2014] NZHC 1484.}

¹⁹ Re Ioane HC Auckland CIV-2009-404-5527, 27 October 2009; Marley v Rawlings [2014] UKSC

_{2[2014] UKSC 2; , [2015] AC 129.}

²⁰ Re Segelman [1996] Ch 171 at 180.

[27] What is important is that the Court consider the intention of the will-maker and measure that against the final will, as presented to the Court. If there is a discrepancy, it must be considered whether the discrepancy can fairly be attributable to one of the factors in s 31(1)(a) or (b). If so, the Court can then proceed to correct the will. The paramount consideration must always be to give effect to the intention of the will-maker.

[28] Section 31, and indeed, ss 32 and 14 ( as comprising a further extension of the relaxation of formality under the Wills Act 2007) were not intended to be a panacea for correcting all anomalies and abnormalities in wills however. The overarching theme is providing to the Court mechanisms to give effect to the will- maker’s intent, but no more. Wills are not be rewritten because of the dissatisfaction of families, or where their very validity is called into question for example through incapacity, want of knowledge and approval, duress, undue influence or the like.

Middle name error

[29] The correction of simple clerical errors is non-contentious. It is carried out routinely as a matter of course. In R v Reynolds, MacKenzie J had no difficulty in making an order correcting the name of a beneficiary to “Doris Pearl Reynolds” where it was clear that the reference to “Dennis Pearl Reynolds” was incorrect.²¹

Equally, in Re Grainger, a correcting order under s 31 was made where the

deceased’s will stated to “my ex wife Amanda Marie Grainger”, but he had two ex- wives, one named Catherine Marie Grainger and the other Amanda Jane Grainger.²²

Similarly, in Re McKeay, a beneficiary was incorrectly named in the deceased’s will.²³ In those circumstances, MacKenzie J considered it absolutely plain that the name was inserted by clerical error.

[30] In Re Bryce, Priestley J had no hesitation in correcting certain arithmetical errors in a will.²⁴ He described his approach as “totally consistent” with the

_{decisions Re Garner and Re Gibson.}²⁵ _{In Re Martick, Toogood J was sufficiently}

²¹ _{Re Reynolds [2013] NZHC 3245.}

²² _{Re Grainger [2013] NZHC 3371.}

²³ _{Re McKeay [2012] NZHC 534.}

²⁴ _{Re Bryce [2013] NZHC 2089.}

²⁵ At [9], citing Re Garner [2013] NZHC 42; Re Gibson [2013] NZHC 1524.

satisfied of testamentary intent to order correction under s 31 in circumstances where a codicil failed to specify the clause in a will which was to be revoked and replaced.²⁶ And, a reference to a clearly incorrect date was corrected without difficulty in Re Hitchcock.²⁷

[31] I therefore have no difficulty in ordering, pursuant to s 31, correction of all references in her will to the deceased’s middle name as “Anne” when it should be “Ann”. Plainly the deceased was seeking to refer to herself. An extra “e” has, through simple clerical error, been added. These types of errors are plainly what s 31 was aimed at correcting. In a case such as this, there is little need to question the intent of the will-maker.

Erroneous transposition of clauses from Mr Haldane’s will

[32] There is little doubt that s 31 was also designed to cure more substantive errors. In this case those substantive errors are the erroneous transposition of parts of Mr Haldane’s will into the will of the deceased. This is, at least prima facie, open to correction.

[33] Given that this case was presented summarily before me, with little evidence and no authorities, it is appropriate that I ascertain some appropriate benchmark against which this application should be measured. A very similar situation to the present arose in Re Flowers.²⁸ In that case, the second page of a two-page will, that was signed by the will-maker, was actually a duplicate of the second page of her husband’s mirror will. Woodhouse J granted the application.

[34] As Woodhouse J identified in Re Flowers,²⁹ the Court was faced with similar issues in both Re Ioane and Re Smart.³⁰ In Re Ioane the issue facing Allan J, was that the deceased and her husband had inadvertently signed each other’s mirror wills.

_{As the Wills Act then stood, Allan J noted that s 40(2)(k) prevented resort to the}

²⁶ _{Re Martick [2013] NZHC 3.}

27. Re Hitchcock HC Auckland CIV-2010-404-388, 4 March 2010. See too Re Armstrong HC Wellington CIV-2008-435-95, 31 July 2008.

²⁸ _{Re Flowers HC Auckland CIV-2009-404-5501, 3 March 2011.}

²⁹ _{At [12].}

³⁰ Re Ioane HC Auckland CIV-2009-404-5527, 27 October 2009; Re Smart HC Palmerston North

CIV-2010-454-112, 30 April 2010.

validation powers in s 14. The application of s 31 was therefore considered. After contemplating the corpus of law leading up to and beyond the enactment of the Wills Act 2007, Allan J was in no doubt that s 31 could assist the applicants in that case.

[35] In Re Smart, MacKenzie J was faced with a conundrum very similar to that arising in the present case. There, clause 3 of the deceased’s will purported to give her estate to herself. MacKenzie J stated that the error fell squarely within s 31 and orders correcting the will were made.

[36] Another case of inadvertent signing of mirror wills arose in Re Keast.³¹

There was no question about the execution of the documents themselves, as they complied with all requirements. It was only after Mrs Keast died that it was realised that Mr and Mrs Keast had signed each other’s wills. After traversing relevant authorities,³² Chisholm J remedied the problem with appropriate orders and admitted the will to probate.

[37] In Re Johnson, the issue was that cls 4 and 5 of the will were inadvertently not made subject to cl 3, along with a minor typographical error.³³ Although the solicitors were unable to locate the file, MacKenzie J was satisfied, on the basis of anomalies internal to the will, that as it stood, the intention of the will maker was not reflected in the will. An order was made correcting the will.

[38] Re Ion is a case where a Deputy Registrar refused a grant of probate on the basis that probate cannot be granted to a company.³⁴ The problem arose because the will maker sought to appoint two trustees “of the firm Steindle Williams Legal Limited”. Woodhouse J granted the application as the evidence of the solicitor who prepared the will was that the intent of the will-maker was to appoint the two

_{directors as personal executors in a straightforward way.}

³¹ _{Re Keast HC Christchurch CIV-2006-409-1623, 26 July 2006.}

³² See for example Guardian Trust and Executors Company of New Zealand Ltd v Inwood [1946] NZLR 614 (CA); Re Forster (deceased) [1956] NZLR 44 (HC) (the Court here declined to substitute words); McConagle v Starkey [1997] 3 NZLR 635 (HC).

³³ _{Re Johnson HC Wellington CIV-2011-485-1186, 23 September 2011.}

³⁴ Re Ion [2013] NZHC 1333.

[39] The final case to which I will refer under this head is Re Riddick.³⁵ Mr Riddick, the deceased, was survived by his wife and four children. The will provided a life interest to the wife, but provided for no gift over to residuary beneficiaries on her death. There was, on the face of the will, a partial intestacy. In establishing the true intent of the will maker, MacKenzie J paid regard to an affidavit in support of the application deposed by the solicitor who prepared the will, and also gained support from cl 11 of the will. An order correcting the will was therefore granted.

[40] It will be quite apparent therefore that recently, the Courts have not been reluctant to make substantial alterations to a defective will to give effect to the intent of the will maker, where that intent can be established by evidence. In the present case, I have reached a point where I am satisfied on balance that the changes sought would give effect to the intention of the deceased. Normally it would be expected that some affidavit evidence be filed from the firm of solicitors who drafted the will in question, or will instructions or a file note that is completed would be provided to the Court, to enable it to verify the intent of the will maker. That has not occurred in the present case however.

[41] Notwithstanding this, after reviewing the wills of the deceased and her husband, Mr Haldane here, it seems clear to me that the intention was to draft mirror wills. Through a plain and obvious clerical error, it appears that either Mr Haldane’s will was used as a template, but never appropriately tailored to the deceased’s requirements or pages 2 and 3 of the respective wills simply transposed. Indeed, it would be nonsensical to hold that the deceased intended to dispose of her own property to herself by will.

Outcome

[42] The corrections sought in the plaintiffs’ statement of claim are to be made. The orders sought will be granted. I do pause to note, however, that the existence of

errors, in many recent wills that come before this Court, has previously drawn the ire of the Courts. In Re Bryce, Priestley J expressed his frustration thus:³⁶

[10] I must express some astonishment, however, that relatively simple errors of this nature appear to be so frequent and require judicial intervention. I suspect the problem lies with current equipment used to produce legal documents, the structure of law firms, and insufficient care and attention being paid by the responsible partner or solicitor at the time a will is executed.

[43] It is hard not to agree with those sentiments. Indeed, in the present case the mistakes were avoidable, arising out of duplication or transposing of part of an existing will, but failing to modify it to the requirements of a client.

Orders

[44] I order pursuant to s 31 of the Wills Act 2007 that:

(i) All references in the deceased’s 2 December 1996 will to the middle name of the deceased are to be altered from “Anne” to “Ann”.

(ii) Clauses 6(a) and 6(b) of the deceased’s 6 December 1996 will

are to be altered as follows:

(i) Clause 6(a) is deleted and substituted therefore is the following:

(a) To pay the net annual income arising therefrom to my husband KENNETH NORMAN HALDANE so long as he remains my widower.

(ii) The first nine (9) words of cl 6(b) are deleted and substituted therefore are the following:

(b) After the death or remarriage of my said husband

(iii) That the first 10 (ten) words of cl 11 are deleted and substituted therefore are the following:

I EMPOWER my Trustee KENNETH NORMAN HALDANE notwithstanding his office

(iv) That the first 13 (thirteen) words of cl 12 are deleted and substituted therefore are the following:

I EMPOWER my Trustee KENNETH NORMAN HALDANE to bid on his own behalf

(v) Probate of the deceased’s 2 December 1996 will, as corrected in accordance with [44](i)-(iv) above, be granted to the plaintiffs.

(vi) The costs and disbursements of bringing this proceeding are to be paid out of the estate of the deceased.

..................................................

Gendall J

Solicitors:

Hill Lee and Scott, Christchurch