Ion (deceased)

[2013] NZHC 1333

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2391 [2013] NZHC 1333

IN THE ESTATE               of JOHANNA MARIA ION Deceased

Hearing:                   (on the papers : referred 30 May 2013) Counsel:           J A Stewart for the Applicant Judgment: 6 June 2013

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 6 June 2013 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr J A Stewart, Steindle Williams Legal Ltd, Solicitors, Auckland

RE ION (DECEASED) [2013] NZHC 1333 [6 June 2013]

[1]      Application has been made for an order correcting a provision in the last will of Johanna Maria Ion on the grounds that the provision does not give effect to Mrs Ion’s intention. The application is made under s 31(1)(b) of the Wills Act 2007.

[2]      The application concerns clause 3 of the will, which is as follows:

I appoint two (2) directors of the firm of Steindle Williams Legal Limited of Auckland or its successor (who are referred to as “my Trustees”) Executors and Trustees of this my Will such directors to be designated by a majority of the then directors of the firm within one (1) month of the date of my death.

[3]      Following Mrs Ion’s death an application for grant of probate was made by Megan Anne Williams and Anthony Charles Reginald Steindle.  When the will was made, and at the present time, Ms Williams and Mr Steindle were and are the principals of the law firm Steindle Williams Legal and the only directors of Steindle Williams Legal Limited.

[4]      A Deputy Registrar declined the application pursuant to s 63(1) and (2) of the Administration Act 1969.   Section 63(1) prohibits grant of probate of a will to a company unless it is a company authorised by statute to apply for and obtain a grant. Section 63(2), so far as  material, provides that “where a power is granted to a company or to the directors of a company by will to nominate any person as executor of the will, a grant to the person so nominated shall be deemed to be a grant to the company”.

[5]      The solicitors then made the present  application.   The broad question is whether clause 3 of the will failed to give effect to Mrs Ion’s instructions.   The focussed question is whether it can be concluded, on the evidence provided, that Mrs Ion’s instructions were to appoint Mr Steindle and Ms Williams as individuals, rather than to appoint any two people who might be directors of the company Steindle Williams Legal Limited.

[6]      The primary evidence as to Mrs Ion’s instructions comes from the solicitor who took the instructions for preparation of the will.   I am satisfied  from this evidence that Mrs Ion’s instructions were to appoint the two principals of the law firm, who were Mr Steindle and Ms Williams.   This is the direct evidence of the

solicitor who took the instructions.   It is also consistent with the provision in Mrs Ion’s immediately preceding will which appointed two named solicitors of another law firm.

[7]      Mrs Ion’s instructions, the nature of which are satisfactorily proved, would properly have been met if clause 3 had, in a straightforward way, appointed Mr Steindle and Ms Williams as the executors.  What was done did not give effect to Mrs Ion’s instructions.   The evidence from the solicitor who took the instructions also makes clear that the error came about as  a consequence of that  solicitor’s decision, without instructions, to draft clause 3 in the way that it has been drafted.  It would appear that the clause was drafted in the way it has been drafted by adapting standard form provisions that were used for the appointment of two unidentified

solicitors of an incorporated firm of solicitors.[1]   However, in addition to the fact that

the  clause  does  not  in  fact  reflect  the  instructions,  the  effect  of  s 63  of  the

Administration Act was overlooked.[2]

[1] J Earles, WLB Douglas, C Kelly and G Kelly (eds) Dobbie’s Probate and Administration Practice

(5th ed, LexisNexis, Wellington, 2008) at 17.11-17.12.

[2] In Dobbie, above n 2, the opinion was expressed that s 63 of the Administration Act appeared to prevent appointment of incorporated law practices.

[8]      I am satisfied that an order should be made correcting clause 3.  There is an order that clause 3 in the will be deleted and the following substituted:

I appoint Anthony Charles Reginald Steindle and Megan Anne Williams, both of Auckland, solicitors, (who are referred to as “my trustees”) executors and trustees of this my will.

[9]      I observe that this is a case where it would appear that the costs of the application for correction should be borne by Steindle Williams Legal Limited rather

than the estate.

Woodhouse J