IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2015-485-821 [2015] NZHC 2714
UNDER Wills Act 2007 IN THE MATTER
of an Application for Probate in Solemn
FormBETWEEN
FRANCIS WILLIAM MARFELL AND PETER GERARD MARFELL
Plaintiffs
AND
DENIS JOHN MARFELL First Defendant
Hearing: On Papers Counsel:
D P Nield for Plaintiffs
Judgment:
4 November 2015
JUDGMENT OF SIMON FRANCE J
[1] The testator died on 18 August 2015. She had no siblings, parents or children who survived her. By will dated 31 January 2014, the testator left her residual estate to her five surviving nieces and nephews. The relevant clause provides:
To pay the income [from the residuary estate] from the balance equally to
my niece and nephews…
[2] No provision is made concerning payment of the capital. Application is made by the executors for the will to be amended to insert after the word income “and
capital”.
MARFELL & MARFELL v MARFELL [2015] NZHC 2714 [4 November 2015]
[3] I am satisfied that a drafting error is involved and s 31 of the Wills Act 2007 can properly be invoked. It is possible to see from the preceding will how the error arose. In that will there was life interest in the income of the residuary estate to the testator’s sister, and then a gift of the residuary estate to the nieces and nephews. When the life interest was removed from this will, the capital aspect of the arrangement was deleted in error.
[4] The five beneficiaries are the only remaining relatives. All consent to the amendment. It is appropriate to dispose of the matter on the papers and without notice by any other person.
Conclusion
[5] I direct that the will of Patricia Mary Hoult be corrected so as to insert into cl 5.1, after the word income, the words “and capital”.
Simon France J
Solicitors:
Gascoigne Wicks, Lawyers, Blenheim
- AGLC
- Marfell v Marfell [2015] NZHC 2714
- Case
- [2015] NZHC 2714
- Decision Date
CaseChat Overview and Summary
The legal issue before the court was whether section 31 of the Wills Act 2007 allowed for the amendment of the will to include a provision for the distribution of the capital from the residual estate. The plaintiffs argued that the omission of the capital in the will was a drafting error, and that all beneficiaries consented to the amendment. The court had to consider whether the amendment would accurately reflect the testator's intentions and whether it was appropriate to dispose of the matter without notice to any other person.
The court found that the omission of the capital in the will was indeed a drafting error, as evidenced by the previous will which included a life interest in the income of the residuary estate to the testator's sister. The court also noted that all beneficiaries consented to the amendment and that there was no reason to believe that any other person would be affected by the amendment. The court concluded that the amendment would accurately reflect the testator's intentions and that it was appropriate to dispose of the matter on the papers and without notice to any other person.
The court directed that the will of Patricia Mary Hoult be corrected to include a provision for the distribution of the capital from her residuary estate. The amendment inserted the words "and capital" into clause 5.1 of the will, after the word "income". The court's decision was based on the testator's clear intention to distribute her residual estate to her nieces and nephews, and the court found that the amendment was necessary to accurately reflect that intention.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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