Stokes

[2023] NZHC 2092

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-358

[2023] NZHC 2092

IN THE MATTER

AND

of the Wills Act 2007

IN THE MATTER

AND

of the Estate of KEVIN GREAME JOHN STOKES

IN THE MATTER

of an application by HENRY GILES PAUL STOKES for an order correcting a Will to carry out the Will-maker’s intentions

Hearing:	On the papers
Counsel:	T A Donnelly for applicant
Date of judgment:	8 August 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 8 August 2023 at 10.00am.

Pursuant to Rule 11.5 of the High Court Rules

………………………… Registrar/Deputy Registrar

Solicitors:

Perpetual Trust, Ltd, Auckland

RE STOKES [2023] NZHC 2092 [8 August 2023]

[1]                 Kevin Greame John Stokes died at Hamilton on 7 November 2021. His last will was executed on 1 September 2017. His solicitor, Kay Lynette Hoult, drafted the will and was one of the witnesses to its execution.

[2]                 The will’s subclause 4(e), addressing the estate’s residue, provides “pay the remainder of my estate, to such of my children as shall survive me and if more than one in equal shares”, subject to subsequent (largely irrelevant) provisos. The extent of their relevance is provisos (i) and (v) respectively refer to “any child of mine” and “any child or grandchild of mine”. Those provisos respectively relate to “the share that child would have taken” and “the gift he/she has been given under this my Will”.

[3]                 At the time of his death, Mr Stokes’ children were Harrison, Johnathon, Laura and Morgan. Ms Hoult’s instructions were clear Mr Stokes and Johnathon were estranged and no provision was to be made for Johnathon in Mr Stokes’ will. All children have been served with the application; none has filed any opposition to its determination.

[4]                 On 29 March 2023 Woolford J directed the application be set down “on the first available date” for a formal proof hearing, although none yet has been allocated. While justice generally prefers matters be heard in open court, continuing delay to determination of the private arrangements at issue and the absence of any opposition from those affected satisfy me the application may as well be addressed on the papers as the applicant requests.

[5]                 Wills stand to be rectified or interpreted under the Wills Act 2007. Relevantly here, if I am satisfied “the will does not carry out the will-maker’s intention because it … does not give effect to the will-maker’s instructions”, I may make “an order correcting the will to carry out the will-maker’s intentions”.1 Or, if the words used make the will or some part of it meaningless, or ambiguous or uncertain (in either respect, whether on its face or in the light of surrounding circumstances), I may use external evidence — including of the will-maker’s testamentary intentions, but not as

1      Wills Act 2007, s 31.

evidence of the surrounding circumstances — to interpret those words.2 My “overriding objective is to give effect to the intentions of the testator”.3

[6]                 Unfortunately, by addressing the children as a class for the purposes of residue, the will did not give effect to Mr Stokes’ instruction no provision be made for Johnathon. I am satisfied by the affidavit evidence Mr Stokes’ intention was not to make provision for Johnathon in his will. Ms Hoult’s evidence exhibits a copy of her contemporaneous instruction note dated 5 August 2017, including after explanatory background comments under the heading “Jonathon” “Kevin’s clear instructions → J is not to be part of his will, not mentioned, and nothing left for him”. Other affidavit evidence corroborates Ms Hoult’s background comments. Thus the provisos’ references to “any child”, even if they might otherwise have any effect, also are meant to exclude Johnathon.

Result

[7]                 Under s 31 of the Wills Act 2007, being satisfied the will does not carry out Mr Stokes’ intentions because it does not give effect to his instructions, I order clause 4(e) of the will be corrected to provide “pay the remainder of my estate to such of my children Laura Grace Casey, Morgan O’Shannessey and Harrison O’Shannessey as shall survive me and if more than one in equal shares”.

[8]                 Under s 32, I interpret “any child” in clause 4(e)’s provisos (i) and (v) to refer only to those children, being Laura Grace Casey, Morgan O’Shannessey and Harrison O’Shannessey.

—Jagose J

2      Section 32.

3      Wilson v Davidson [2017] NZCA 468 at [10], citing Re Jensen [1992] 2 NZLR 506 (HC) at 510.