Estate of Gibson

[2013] NZHC 1524

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2013-419-000102 [2013] NZHC 1524

UNDER  the Wills Act 2007

IN THE ESTATE OF         JEAN GILLIES GIBSON

Hearing:                   (On the papers)

Appearances:           C W Grenfell and R S Beattie for the Applicants

Judgment:                24 June 2013

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 24 June 2013 at 3.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Counsel:

C W Grenfell and R S Beattie, Te Awamutu

ESTATE OF JEAN GILLIES GIBSON [2013] NZHC 1524 [24 June 2013]

[1]      The applicants, Robert Gibson and Robyn Martin, apply for orders pursuant to s 31 of the Wills Act 2007 for correction of the will of the late Jean Gillies Gibson.

[2]      The  late  Mrs  Gibson  died  in  October  2012.     She  left  a  will  dated

21 November  2001.    She  appointed  her  son,  Robert  Gibson,  and  her  daughter, Robyn Martin, as the trustees of her will.   She left the whole of her estate to her trustees on trust, to pay her debts and executorship expenses, and to hold the residue as to one quarter for Mr Gibson, as to another quarter for Ms Martin, as to a third quarter for her daughter, Coral Townley, as to a one-sixteenth share for one of her granddaughters and her children, and as to a one-sixth share for another granddaughter and her children, a one-sixth share for a third granddaughter and her children, and a final one-sixth share for a fourth granddaughter and her children.

[3]      Clearly, the mathematics do not add up.

[4]      There are further difficulties with the will.   The will refers to Coral Anne Townley.  Ms Townley’s correct name is Coral Ann Townley.  Another clause in the will refers to the deceased’s granddaughter, Helen Jean Rowe and her children, Helen Jean,  Jason  Murray,  Wendy  Jean  and  Matthew  Sydney.     It  seems  that Helen Jean Rowe and Helen Jean are one and the same person.

[5]      Mr Gibson and Ms Martin seek orders correcting the will.   They seek to correct the name that is spelt wrongly, delete the second reference to Helen Jean, and alter the one-sixth shares left to three of the granddaughters and their children to one-sixteenth shares.

[6]      In a minute issued on 22 February 2013, I declined to dispense with service on  potentially  affected  beneficiaries.    I  advised  that  there  was  nothing  in  the affidavits filed to indicate their attitude to the application.  I convened a telephone conference with counsel, and he advised that he would put the matter in hand, and come back to the Court when he was in a position to do so.

[7]      Subsequently,   a   memorandum   was   received   from   counsel.      That memorandum annexed consent forms, which were said to have been signed by all affected beneficiaries.

[8]      I was concerned that there was still no sworn affidavit before the Court detailing the beneficiaries potentially affected by the will.  At my request, the Registrar spoke to counsel in this regard.   A subsequent memorandum was then received from counsel confirming that the beneficiaries who had signed the consent were the only beneficiaries affected under the will.

[9]      Again, I was concerned that there was no sworn evidence to this effect, and I arranged a telephone conference to discuss the position with counsel.   I issued a further minute in that regard on 26 April 2013.

[10]     I have now received affidavits from Mr Gibson and Ms Martin.  They have confirmed that all of the beneficiaries affected by the late Mrs Gibson’s will have signed consent forms confirming that they consent to the application.  Those signed consents have been made available to the Court.   They have also confirmed that while there are other family members who are not named in the will, who may be entitled to bring claims against the estate, those family members are not, in their view, prejudiced by the error in the will, or by the application for correction.

[11]     I have read the various affidavits on the file, including the affidavit from the solicitor who prepared the will, a Mr Brown.   While Mr Brown had no express recollection of taking instructions from the testatrix, I agree with his view that the testatrix must have intended that the three first named beneficiaries should take a one-quarter  share  each,  and  that  the  remaining  quarter  share  should  be  divided equally  amongst  the  four  families,  each  comprising  a  granddaughter  and  her children. The errors contained in the will appear to be clerical errors.

[12]     All affected beneficiaries have consented.   I am satisfied that the potential claims of other family members are not affected by an order correcting the will in the terms sought.

[13]     Accordingly, I make an order correcting the will as follows:

(a)       Clause 3.3.3 should read “as to a one-quarter share for my daughter,

Coral Ann Townley”;

(b)Clause 3.3.4 should read “as to a one-sixteenth share for those of them who survive me and reach 20 of my granddaughter Helen Jean Rowe and her children Jason Murray, Wendy Jean and Matthew Sydney in equal shares”;

(c)      Clause 3.3.5 should read “as to a one-sixteenth share for those of them who survive me and reach 20 of my granddaughter Beverley Sharon McNaughton and her children Kurtis and Katie in equal shares”;

(d)Clause 3.3.6 should read “as to a one-sixteenth share for those of them who survive me and  reach  20  of my granddaughter Melissa Jean Vaughan and her children Jamie and Chayenne in equal shares”;

(e)      Clause 3.3.7 should read “as to a one-sixteenth share of those of them who survive me and reach 20 of my granddaughter Kristie Lee Parker and her children Liam and Jack in equal shares”.

[14]     I am satisfied that such order is necessary to properly carry out the testatrix’s

intentions.

[15]     I note that in some, but not all of the consent forms, the name “Jamie” has been changed to “Jaime” and the name “Kristie” has been changed to “Kristy”.  I do not correct the will to provide for this, first, because there is no application in this regard, and secondly, because the alterations are not contained in all original consent forms.  Notably, the alterations are not made in the consent form signed by Jamie (Jaime?).  The Court cannot be sure of the position.  I reserve leave to the applicants to seek further orders in this regard if they are required.

[16]     I direct that Mr Gibson and Ms Martin are entitled to recover their reasonable costs and disbursements in dealing with this application out of the assets of the

estate.

Wylie J