IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CIV 2014-483-10 [2015] NZHC 1273

IN THE MATTER OF	s 31 of the Wills Act 2007	

AND	
the estate of Ngaire Hirau West	

AND	
an application by Public Trust for an order correcting the will of the abovenamed Ngaire Hirau West	

Hearing:	8 June 2015	

Appearances:	
J Upton QC and A Sonti on behalf of the Applicant	

Judgment:	
8 June 2015	

ORAL JUDGMENT OF MALLON J

The application

[1]       The Public Trust  applies  for an  order under s 31  of the Wills Act  2007 correcting a will.   The will is that of the late Ngaire Hirau West. The application relates to clause 7 of the will. That clause provides:

7.	Gift of residue

I GIVE -

My residuary estate to be divided equally among my son HAMUA POUNAMU JADE WEST and my granddaughters NGAWAI CERESE WEST and DAINA MIHAKA living at my death who reach the age of 20 years.

[2]	The application proposes a correction to this clause on the basis that Ms West

did not intend to leave her interests in Māori land to the three named residuary

beneficiaries.

Estate of Ngaire Hirau West [2015] NZHC 1273 [8 June 2015]

The procedure

[3]       The application is brought under Part 19 of the High Court Rules on notice, pursuant to leave granted by the High Court on 3 April 2014.  The application and supporting affidavits  were served  on  the  three  named residuary beneficiaries  as follows:

(a)	Mark West, as father of Hamua Pounamu Jade West, on 30 December

2014;

(b)	Daina Mihaka on 6 August 2014; and

(c)	Matenga Jean Mavis West, as biological mother of Ngawai Cerese

West, on 14 August 2014.

[4]       According to the Public Trust’s records Daina Mihaka was born in 1994,

Hamua West was born in 2000, and Ngawai West was born in 2005.

[5]       Prior to bringing this  application the Public Trust corresponded with the parents and guardians of the named residuary beneficiaries.  Mark West, on behalf of Hamua  Pounamu  Jade  West,  indicated  his  consent  and  signed  a  document confirming that consent.  He also indicated his consent on behalf of Ngawai Cerese West but, before confirming that in writing, Ngawai went to live with her mother, Matenga Jean Mavis West.   Ngawai’s mother has declined to take any steps on behalf of Ngawai in connection with this application.   Daina Mihaka’s guardian, Moana Mareraki, indicated her consent on behalf of Daina.  Daina is now 18 years old, so can speak for herself.

[6]       Since  then,  none  of  the  three  named  residuary  beneficiaries,  directly  or through their guardians, has sought to be involved or take any part in the present application.  No notices of opposition have been filed.  The time for filing notices of opposition has long since expired.

The legislative power

[7]       Section 31 of the Wills Act provides as follows:

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.

[8]       The application can therefore be granted if the Court is satisfied that the will does not carry out Ms West’s intentions, whether because it contains a clerical error or because it does not give effect to the will-maker’s instructions.

The evidence

[9]       The will was prepared by the Public Trust.  An affidavit has been filed by

Glenda MacGee, an employee of the Public Trust.  She visited Ngaire Hirau West on

16 June 2008 at the request of Ms West’s daughter-in-law, Janet Hartley-West.  Janet was present during the interview.  In the course of working through the Public Trust will  questionnaire,  Ms West  advised  Ms MacGee  that  her  assets  were  minimal, mainly consisting of a bank account.  Ms MacGee asked her if she had any interest in Māori land.  Ms West confirmed that she did, but said she did not want her Māori land shares to be included in her will.   She said that she had given Janet all the information regarding her Māori land interests and Janet was going to deal with them.  Ms West motioned towards Janet who held up a folder.  Janet confirmed to Ms MacGee, in the presence of Ms West, that she was going to the Māori Land Office to sort the land out.

[10]     Ms MacGee deposes as follows:

It was and remains my clear understanding that, as far as the deceased was concerned, it was Janet’s responsibility to sort out the Māori land interests and that they were a separate issue to her will.  I then went back to the office and prepared a will for the deceased.   Unfortunately, the will as prepared contained an inadvertent error, and did not properly follow the deceased’s

instructions.  As drawn, it left the whole of her residuary estate (including her Māori land interests) to the three individuals named in para.7 of her will, when that was not what she wanted.

[11]     Ms West signed her will on 25 June 2008.  She died at Whanganui on 8 July

2008.

My assessment

[12]   The evidence of Ms MacGee is not challenged.   The named residuary beneficiaries have had time to challenge that evidence if they wished to do so.  I am satisfied on the basis of the evidence that the will did not carry out the will-maker’s intention.  Ms West’s intention was that her interests in Māori land were to be dealt with by her daughter-in-law (Janet Hartley-West).   The will did not carry out her intention because it contained a clerical error by not expressly excluding her Māori land interest and in doing so it did not give effect to Ms West’s instructions.  In these circumstances I am satisfied that it is appropriate to make the order the Public Trust seeks.

[13]     Accordingly I order that clause 7 of the will as signed is deleted and the following clause is substituted:

7.         Gift of residue

I GIVE –

my residuary estate (other than any interests in Māori land which I may have at the time of my death) to be divided equally among my son HAMUA POUNAMU JADE WEST and my granddaughters NGAWAI CERESE WEST and DAINA MIHAKA living at my death who reach the age of 20 years.

[14]	There is no issue as to costs.

Mallon J