Estate of Langenberger [2018] NZHC 526 (23 March 2018)

Last Updated: 28 March 2018

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CIV-2017-463-118 [2018] NZHC 526

IN THE MATTER	of an application to validate or correct a Will
UNDER	the Wills Act 2007
IN THE MATTER	of NORAH JEAN LANGENBERGER (Deceased) JOSEPH ANTON LANGENBERGER Applicant

Hearing:	On the papers
Appearances:	J M McCleary for the Applicant
Judgment:	23 March 2018

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 23 March 2018 at 4:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

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

Solicitors:

Mr J M McCleary, Buddle Bentley McCleary, Solicitors, Whakatane

ESTATE OF LANGENBERGER [2018] NZHC 526 [23 March 2018]

[1] This is a without notice application for alternative orders under the Wills Act 2007 (the Act): either an order under s 14 declaring a will to be valid or an order under s 31 for correction of a clerical error.

[2] It is a case where a husband and wife, Mrs Norah and Mr Joseph Langenberger, intended to sign mirror wills, but inadvertently signed the wrong will. Mrs Langenberger has died. Mr Langenberger, having survived his wife, is the sole beneficiary under the document intended as Mrs Langenberger’s will but which Mr Langenberger signed.

[3] The application is supported by affidavits from Mr Langenberger and the solicitor who acted for Mr and Mrs Langenberger in taking their instructions, drafting the mirror wills, and arranging for them to be signed. The error was not discovered until the will drafted as Mrs Langenberger’s will was filed for probate.

[4] I am satisfied from the evidence that the application is appropriately made without notice.

[5] The commentary on ss 14 and 31 of the Act in Family Property records that there is a difference of judicial opinion in and between some Australian states as to whether the appropriate statutory provision to remedy mistakes of this sort is the Australian state equivalent of s 14 or s 31.¹ Both provisions have been applied in decisions of this Court.² In Subramaniam McKenzie J used s 14 as the “more direct route” but observed that s 31 could also have been used.

[6] I agree with McKenzie J. One or other of the provisions may be more appropriate depending on practical variables, such as the timing of the application for validation or correction, and whether the will submitted for probate is the will drafted as the will of the deceased, but signed by the surviving spouse, or the will signed by the deceased but drafted as the will of the surviving spouse. There are likely to be some other variables making one or other of the provisions more appropriate. In my

1. Nicola Peart (ed) Brookers Family Law – Family Property (online looseleaf ed, Thomson Reuters) at [WB31.03(3)]. And see [WB14.03(3)] and [WB14.03C].
2. Re Ioane HC Auckland CIV-2009-404-5527, 27 October 2010; Re Estate of Subramaniam [2014] NZHC 1484.

opinion, the substantial reforms in this area introduced in the Act, designed to remove “the rigidity of the past”,³ support an approach which preserves the flexibility available from ss 14 and 31.

[7] In this case the evidence justifies the making of an appropriate order. The appropriate order is under s 14 because the will submitted for probate is the will that Mrs Langenberger intended to sign, and which clearly expresses her testamentary intentions, but it is not a valid will because she did not sign it.

Result

[8] There is an order pursuant to s 14 of the Wills Act 2007 declaring the following document to be the valid will of Norah Jean Langenberger who died at Whakatane on or about 17 November 2016: that is, the document in respect of which a grant of probate has been sought under probate number CIV-2017-485-600749, and being annexure B to the affidavit of Brian John Ritchie in support of the probate application.









Woodhouse J

³ Haldane v Haldane [2015] NZHC 352 at [25].