Estate of Riddick [2013] NZHC 909 (29 April 2013)

Last Updated: 30 June 2013

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2013-443-14 [2013] NZHC 909

UNDER ESTATE OF EDWARD ELLIOTT RIDDICK (DECEASED)

Hearing: On the papers Counsel: J G Konijn Judgment: 29 April 2013

In accordance with r 11.5 I direct that the delivery time of this judgment is 4.15pm on the 29th day of April 2013.

_{JUDGMENT OF MACKENZIE J}

[1] This is an application for an order correcting the will of the deceased under s 31 of the Wills Act 2007.

[2] The application has been made without notice. I must first determine whether under r 7.46(2) of the High Court Rules the application can properly be dealt with without notice.

[3] All persons who may be affected by the making of the order sought must have a proper opportunity to be heard on the application. The deceased, Mr Riddick, is survived by his wife and four children. The will leaves a life interest to his widow, but makes no provision for a gift of the remainder, that is, the estate after the widow’s life interest. There is, on the will as it stands, an intestacy to that extent. The correction sought is to add clauses dealing with the remainder. The persons who will be affected by the making of the order sought are those who would benefit on an

_intestacy.

RE RIDDICK (DECEASED)HC NWP CIV-2013-443-14 [29 April 2013]

[4] Under cl 2 of the table set out in s 77 of the Administration Act 1969, a third would be held for the wife and two thirds for the children. Because the intestacy relates to the remainder, that succession is subject to s 79 of the Administration Act, which applies on a partial intestacy. I need not examine that issue. The theoretical possibility that the widow might leave her estate to someone other than her children or grandchildren, may be relevant to succession. I consider that, as a matter of practicality, that need not be addressed on this application. Thus, only the widow and the children are likely to be affected by the making of the order sought. They have all consented to the making of that order. Formal service on them would serve no useful practical purpose, but would add to the costs involved. In those circumstances I am satisfied that the interests of justice require the application to be determined without serving notice of the application. It can properly be dealt with without notice.

[5] Under s 31 of the Act, the Court may make an order correcting the will to carry out the will-maker’s intentions if it is satisfied that the will does not carry out those intentions because it contains a clerical error or does not give effect to the will-maker’s instructions. The relevant clause in this will reads:

7. REMAINDER OF ESTATE

I give the balance of my estate such as may not otherwise have been disposed of in terms of this my Will unto my trustees UPON TRUST:

(a) To pay the net annual income arising thereof to my wife for her lifetime.

(b) After the death of my wife to hold as well the capital as the income thereof for:

i. As to the sum of $10,000.00 to each of my grandchildren living at the date of death of my said wife, should she survive me or living at the date of my death. Such gift to be held by their respective guardian(s) until the grandchild reaches the age of 20 years, but subject to the powers of advancement as mentioned herein.

ii. Loan to be brought into account: On or about the 25th May 2011 my wife and I made a loan of $375,000.00 to our said son ALLAN. The amount of this loan is to be brought into account and charged against the share of my said son in our residuary estates, together with a nominal annual interest amount of 4%. Some principal repayments have been made

and I keep a record. My daughters are not to be disadvantaged in any way by us having made this loan.

[6] The alteration sought is to insert after cl 7(b)(ii) the following words:

(iii) Such of my children as survive me and if more than one in equal shares.

(iv) Should any child of mine fail to survive me leaving a child or children who survives me or is born after my death then that child (or if children then equally between them) shall take that share which the parent would otherwise have taken.

[7] In support of the application, Mr Konijn, the solicitor who prepared the will, has sworn an affidavit in which he deposes that the deceased’s previous will had provided for a life interest to his wife with a gift over to his surviving children, with substitution for grandchildren. That provision had been consistently included in three prior wills. The instructions which Mr Konijn took from Mr Riddick in November 2011 recorded instructions to include a similar provision in the new will.

[8] A further indication that a substitution was intended is apparent from the terms of the will itself. Clause 11 provides:

My trustees are to take over the directorship of Moturoa Shopping Centre Limited and to manage the business on trust, for all of my said children and grandchildren by substitution and I direct and empower my said trustees to be entitled to obtain a reasonable management fee for their efforts in managing the continuation of that business.

[9] The reference to “all of my said children and grandchildren by substitution”

is consistent with the correction sought, and not consistent with the present will.

[10] For these reasons, I am satisfied that the will does not give effect to the will-maker’s instructions.

[11] There will be an order correcting the will dated 22 November 2011 by inserting after cl 7(b)(ii) the following words:

(iii) Such of my children as survive me and if more than one in equal shares.

(iv) Should any child of mine fail to survive me leaving a child or children who survives me or is born after my death then that child

(or if children then equally between them) shall take that share which the parent would otherwise have taken.

“A D MacKenzie J”

Solicitors: Till Henderson, Lawyers, New Plymouth