Estate of Garner [2013] NZHC 42 (4 February 2013)

High Court of New Zealand

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Estate of Garner [2013] NZHC 42 (4 February 2013)

Last Updated: 18 February 2013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-002794 [2013] NZHC 42

IN THE MATTER OF THE ESTATE OF JEAN GARNER

Hearing: Dealt with on the papers

Judgment: 4 February 2013

_{JUDGMENT OF FRENCH J}

Introduction

[1] Ms Jean Garner died on 29 November 2012. Unfortunately, her last will and testament is said to contain a clerical error in that the number of parts into which the residue of the estate was to be divided is expressed as 21, whereas the correct and intended number was 20.

[2] The trustee and executor named in the will has accordingly applied to the Court under s 31 of the Wills Act 2007 for an order correcting the error and granting him probate of the amended will.

Factual Background

[3] The will in question was made on 27 August 2012.

[4] Subclause 3.2 provides for the executor to “divide the residue into twenty one

equal parts” and to hold such parts upon trusts as follows:

(i) TEN (10) parts to my brother JOHN GARNER.

_{(ii) ONE (1) part SARA ELIZABETH LEE-SAWYER.}

ESTATE OF JEAN GARNER HC CHCH CIV-2012-409-002794 [4 February 2013]

(iii) TWO (2) parts to my god-daughter CATHRYN RUTH LANCASTER.

(iv) ONE (1) part to LUKE DAVID PICKERING.

(v) ONE (1) part to JOHN WILLIAM PICKERING. (vi) ONE (1) part to MARY JANE PICKERING.

(vii) ONE (1) part to JANINE ADRIELLE HUDSON. (viii) ONE (1) part to SARA FAITH HUDSON.

(ix) ONE (1) part to TIMOTHY JAMES LANCASTER.

(x) ONE (1) part to the trustees of the TERRACE STATION CHARITABLE TRUST, Hororata for the general purposes of the Trust and I DECLARE that the receipt of the secretary or trustee or other proper officer of the Trust shall be a full and sufficient discharge to my trustees for the same and that my trustee shall not be bound to see the application thereof.

(xi) IF the trusts of any share fail or is renounced, my trustee will add that share or shares to the share of John William Pickering.

[5] The number of listed parts adds up to twenty, not twenty one.

[6] The draftsperson was a solicitor who acted for Ms Garner during her lifetime. He has sworn an affidavit in support of the application. He explains that the same error appeared in two earlier wills dated 5 August 2011 and 2 April 2012. It came about in the following circumstances. On 2 August 2011, he had sent a draft will to Ms Garner for consideration. The draft directed that the residue of her estate be divided into twenty parts. Ms Garner wanted some changes to the draft. These included one beneficiary receiving two parts instead of one part, resulting in the total number of parts being twenty one instead of twenty as per the draft. The changes were duly made and an amended draft prepared. Subsequently, Ms Garner changed her mind again and instructions were received to revert to the terms of the original draft. The final version was then prepared incorporating the change to a one part share for the beneficiary in question but the necessary change to the total number of parts was overlooked. Ms Garner signed that will on 5 August 2011.

[7] The error was never picked up and was repeated when the next two wills were made on 2 April 2012 and 27 August 2012. The difference between the

5 August 2011 will and that of 2 April 2012 relates to the names of some of the beneficiaries but not the number of listed parts which remained at twenty. The only change in the last will of 27 August 2012 concerns what was to happen in the event of any of the trusts of any share failing. In earlier versions, the trustee was directed to add that share to the other shares of the trust which did not fail. Under the will of

27 August 2012, the trustee is to add the share to the share of John William

Pickering.

[8] The evidence establishes that Ms Garner was conscientious in keeping her will updated and that no intended beneficiary has been excluded from the list of beneficiaries appearing in the will of 27 August 2012.

[9] The brother is Ms Garner’s sole surviving sibling. Their parents pre-deceased Ms Garner. She was not survived by any spouse, de facto partner, children or grandchildren. If the will is not corrected and there was a partial intestacy as to one part of the residue, then it would be Mr Garner who stands to benefit. He has been informed of this but having satisfied himself as to his sister’s actual intentions says in a sworn affidavit that he consents to the will being corrected

Decision

[10] Having regard to all the circumstances, I am satisfied that the application may be dealt with on a without notice basis. The making of the order only affects Mr Garner and he consents to it.

[11] I am also satisfied that the will of 27 August 2012 does not carry out Ms Garner’s intentions because it contains a clerical error and does not give effect to her instructions. I accordingly order under s 31 of the Wills Act that the will dated

27 August 2012 be corrected by deleting the phrase “twenty one (21)” in sub clause

3.2 and replacing it with the phrase “twenty (20)”.

[12] I direct the registrar to now consider the application for probate of the corrected will.

Solicitors:

Cuningham Taylor, Christchurch, [e-mail]