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High Court of New Zealand Decisions |
Last Updated: 16 May 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2015-485-615530 [2016] NZHC 653
UNDER
|
Wills Act 2007
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IN THE ESTATE
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of JOSEPHINE PIHEPA BONNINGTON of Auckland in New Zealand, Married Woman
latterly Retired
Deceased
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On the papers
Judgment: 12 April 2016
JUDGMENT OF CLARK J
I direct that the delivery time of this judgment is
4pm on 12 April 2016
Bonnington [2016] NZHC 653 [12 April 2016]
[1] Mrs Josephine Bonnington died on or about 1 October 2015. In her
will dated 2007 she appointed her children as executors
in the event that her
husband did not survive her. He did not.
[2] An obvious clerical error in the will was discovered during
application for probate. Mrs Bonnington’s children —
Alexander,
Ruth and Bernard Bonnington — apply for an order that the error be
corrected pursuant to s 31 of the Wills Act 2007.
[3] The will relevantly reads:
4 SHOULD my said wife not be living at my death I DIRECT
that the following provisions of this paragraph numbered 4 of this my will
shall apply to my estate: —
(a) I APPOINT my children the said ALEXANDER WILLIAM
BONNINGTON, ROBYN RUTH BONNINGTON and BERNARD THOMAS BONNINGTON,
(hereinafter together with the survivor or the survivors of them referred to
as “my trustees”) to be the executors and
trustees of this my
will.
[4] The reference to “wife” in cl 4 was clearly intended to
read “husband.”
[5] Mr Rolfe was the solicitor who prepared the wills of Mr
and Mrs Bonnington. Mr Rolfe deposes that Mr Bonnington’s
instructions
were to give the whole of his estate subject to expenses to his wife Mrs
Bonnington and that she was to be the sole
executor and trustee. If she did not
survive him, the children were to be the executors and trustees. Mrs
Bonnington’s instructions
were that her will was to mirror her
husband’s but for the necessary clerical changes.
[6] Mr Rolfe says that it was his error that resulted in cl 4 of Mrs Bonnington’s will referring to “wife” instead of “husband”. He attended on Mr and Mrs Bonnington when they signed their wills. No one noticed the error at the time the wills were signed.
[7] Mr Rolfe is satisfied that the will does carry out Mrs Bonnington’s
intentions
other than that it refers to “wife” instead of
“husband”.
[8] I am satisfied that the will as it stands does not carry out Mrs
Bonnington’s
intentions because of the clerical error. I therefore make the following
order:
(a) The word “wife” in cl 4 is to be replaced with the word
“husband”.
Karen Clark J
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URL: http://www.nzlii.org/nz/cases/NZHC/2016/653.html