Estate of Martick [2013] NZHC 3 (9 January 2013)

Last Updated: 15 February 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-6509 [2013] NZHC 3

IN THE MATTER OF the Estate of VICTOR NELSON MARTICK formerly of Auckland in New Zealand, but latterly of Manurewa, Retired (Deceased)

Hearing: On the Papers Appearances: PT O'Halloran Judgment: 9 January 2013

_{JUDGMENT OF TOOGOOD J}

This judgment was delivered by me on 9 January 2013 at 1:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

PT O’Halloran, Rice Craig: [e-mail]

Estate of VN Martick HC AK CIV-2012-404-6509 [9 January 2013]

[1] Victor Nelson Martick died at Manurewa on or about 4 October 2012 leaving a will dated 9 April 2002 and a first codicil dated 10 October 2011.

[2] The purpose of the codicil was to replace the executors and trustees originally appointed under the will, namely Mr Martick’s wife and a solicitor, by appointing two other solicitors. Mr Martick’s wife had predeceased him and the solicitor originally appointed had indicated she no longer wished to act as executor and trustee.

[3] By a clerical error, the codicil omitted to identify expressly the clause in the will which was to be revoked and replaced, leaving the prospect of four executors and trustees being appointed under the will, contrary to what I am satisfied were the clear intentions of the deceased.

[4] I am satisfied on the evidence that it is appropriate to order, under s 31(1)(a) of the Wills Act 2007, that the will be corrected so as to comply with the willmaker’s intentions and that probate be granted.

[5] Accordingly, I order:

(a) That the will of Victor Nelson Martick of Manurewa, who died at Manurewa on or about 4 October 2012, be corrected to provide that the executors and trustees of the will be John Leonard Sieprath and Thomas George Nelson Parker, both of Papakura, solicitors; and

(b) That probate of the will be granted to the said executors and trustees.

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

Toogood J