Curtis

[2017] NZHC 2026

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2017-409-000538 [2017] NZHC 2026

IN THE MATTER OF	Section 31 of the Wills Act 2007
BETWEEN	BEVERLEY ANNE CURTIS Applicant

Hearing:	23 August 2017 (On the papers)
Appearances:	P Champion for Applicant
Judgment:	23 August 2017

JUDGMENT OF DUNNINGHAM J

The application

[1]      The applicant, Beverley Anne Curtis, has filed an application for correction of the will of her late husband, Peter Charles Curtis.  She also seeks leave for the application to be made without notice to any other person.

[2]      In her accompanying affidavit, she explains that when her husband was still alive, they arranged for ownership of their house at 7 Ludlow Place, Christchurch to be changed from joint ownership, to ownership as tenants in common in equal shares.  The intention was that they would then, in their respective wills, leave a life interest to each other, but on the death of the survivor their respective interests in the

property would pass to their only son, Gerald Robert Curtis.

ESTATE OF PETER CHARLES CURTIS [2017] NZHC 2026 [23 August 2017]

[3]      She now understands that the will of the deceased did not correctly reflect his instructions in that cl 2 leaves the whole of the deceased’s estate to her, which is in conflict with the provision in cl 3.1.  Furthermore, because of the wording of cl 2, the life tenancy provision in cl 3.1 would only apply in the event that she did not survive her husband for seven days.  She also points out another minor typographical error in the will.

[4]      The offending clause is cl 2 which reads:

I  appoint  my  wife  BEVERLEY  ANNE  CURTIS  (“my  trustee”)  the executor and trustee of this my will and I give the whole of my estate to her. In the event of BEVERLEY ANNE CURTIS not surviving me for seven (7) days then I APPOINT DANIEL CHARLES LORENZO CURTIS and JEREMY ADAM LORENZO CURTIS as my executors and trustees and the following provisions shall apply.

[5]      She seeks an order from the Court amending the will by deleting from cl 2 the words “and I give the whole of my estate to her”, and also the words “and the following provisions shall apply”.

[6]      She also seeks an order changing cl 3.3 to correct a typographical error. Currently it reads “to pay the residue to my estate to my son …”.  It is proposed to change the words “to my estate” with the words “of my estate”.

[7]      The application is sought to be made without notice on the grounds that the changes only affect the applicant and do not affect the son of the deceased who is the only other beneficiary.

Discussion

[8]      I accept it is appropriate that the application be made without notice as the applicant  is  the  only  person  whose  beneficial  interest  in  the  estate  would  be adversely affected by the granting of the order.

[9]      I  also  accept  that  the  drafting  of  the  will  is  clearly  in  error,  and  the amendments sought are required both to make sense of the will, and to give effect to the testator’s intention.

[10]     The  Court  has  jurisdiction  to  make  such  corrections  under  s  31  of  the

Wills Act 2007. That section provides:

31       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.

[11]     Accordingly, I make the following orders:

(a)       I grant leave for this application to be made without notice to any other person.

(b)I direct that the will of Peter Charles Curtis, deceased, a copy of which is marked “A” and attached to the affidavit of the applicant filed in support of this application, be corrected by:

(i)deleting from cl 2 the words “and I give the whole of my estate to her” and the words “and the following provisions shall apply”; and

(ii)      in cl 3.3, replacing the words “to my estate” with the words

“of my estate”.

Solicitors:

Cunningham Taylor, Christchurch