Will of MacGregor [2018] NZHC 353 (8 March 2018)

Last Updated: 15 March 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000116 [2018] NZHC 353

UNDER	Section 31 Wills Act 2007
IN THE MATTER	of the Will of BRUCE EDWARD MacGREGOR
BETWEEN	JANNETTE ANN MacGREGOR Applicant

Hearing:	8 March 2018 (On the papers)
Appearances:	H D P van Schreven for the Applicant
Judgment:	8 March 2018

JUDGMENT OF DUNNINGHAM J

[1] The applicant, is the wife of the late Bruce Edward MacGregor (the deceased), and is also the executor and trustee of the deceased’s Will dated 27 February 1998 (the Will).

[2] She seeks an order under s 31 of the Wills Act 2007 to correct a clerical error in the Will.

Will of BRUCE EDWARD MacGREGOR [2018] NZHC 353 [8 March 2018]

[3] Section 31 of the Wills Act 2007 provides:

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.

[4] In the supporting affidavit of Fraser Charles McKenzie, the lawyer who prepared both this will and a mutual will signed by the deceased’s wife, and who witnessed those wills being signed on 27 February 1998, explains that the intention of each of the will-makers was to provide that their estates pass to each other, with a gift over to their children or their grandchildren, in the event of the death of either of them. The deceased’s will does not properly give effect to that intention because in cl 4(b) of the Will the deceased purports to give his estate “to my husband Bruce Edward MacGregor, namely himself. Mr McKenzie explains this was a clerical error caused by the erroneous transposition of cl 4(b) from the will of the wife of the deceased to the deceased’s will. There is also a clerical error in cl 3 of the Will which, although not relevant as events have in fact transpired, also refers to “husband” rather than “wife”.

[5] It is clear from Mr McKenzie’s affidavit that no-one detected the error at the time and that it simply came as a result of preparing the two wills at the same time and failing to make the necessary adjustments. Consequently, I am satisfied that the Will does not carry out Mr MacGregor’s intentions, nor does it give effect to his instructions, because of the two clerical errors. I am also satisfied that no other person is affected by the application and it can be dealt with on an ex-parte basis.

[6] I therefore make an order correcting the Will under s 31 of the Wills Act by:

(a) deleting from paragraph 3 of the Will the words “my husband”, and replacing those with the words “my wife”; and
(b) deleting from paragraph 4(b) of the Will the word “for my husband Bruce Edward MacGreogor but should he die ...”, and replacing those with the words “for my wife Jannette Ann MacGregory but should she die ...”.

Solicitors:

Clark Boyce, Christchurch