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Errors in wills

Will-makers, and their advisers, are human.  Consequently, from time to time, errors are made in the preparation of a will.  The most common errors relate to the spelling of names and arithmetic.

For example:

  • I bequeath 1/4 of my residuary estate to A
  • I bequeath 1/4 of my residuary estate to B
  • I bequeath 1/4 of my residuary estate to C
  • I bequeath 1/6th of my residuary estate to D
  • I bequeath 1/6th of my residuary estate to E
  • I bequeath 1/6th of my residuary estate to F
  • I bequeath 1/6th of my residuary estate to G
  • I bequeath 1/6th of my residuary estate to H

The mathematics does not compute and the references to 1/6th should in fact be to 1/16th.

While it is accepted that errors occur, given the importance of a will it is not enough to “figure out” what the will-maker must have meant.  Instead, correcting an error in a will requires an application to the High Court.

Guidance on the matters taken into account, and on matters that the Court will not address on its own initiative is provided for in the case of Estate of Gibson where the will contained a number of arithmetic errors and variable spelling of names as well as duplicate beneficiaries.

Another common error is referring to beneficiaries as “my children” when in fact the reference to children also includes step-children.  Where this is the case it is necessary to refer to the step-child beneficiary by name.  Where this is not the case an application pursuant to s 31 and 32 of the Wills Act will be required.  See In the Estate Stephen Dougla Bowne.

Solicitor wrongly records instructions

Whether an error in a will must be attributed to the will-maker where the solictor taking instructions has incorrectly recorded the will-maker’s instructions, is considered In the Estate of Victor Robertson.  In this case Mackenzie J noted that:

 “The incorrect recording of the instructions in the note carried through to the will so that, in terms of s 31(1)(b), the will did not give effect to Mr Robertson’s instructions.”

This carefully considered judgement conisders when a will-maker is bound by the drafting or misunderstood instructions, and when the end result of the same will constitute a remedial clerical error for the purposes of s 31 of the Wills Act.  Section 31 providing that:

s 31 Correction

(1) This section applies when the High Court is satisfied that a will does not carry out the willmaker’s intentions because it—

(a) contains a clerical error; or

(b) does not give effect to the willmaker’s instructions.

(2) The court may make an order correcting the will to carry out the willmaker’s intentions.

Section 31 has also been used to correct solicitor drafting errors when a wife is noted as the husband (and the instructions confirm the error): Estate Laing; Estate of Averil Johnstone

No executor

A will can be declared valid where it is not properly witnessed, even if the will does not provide for an executor: In the estate of Hank Reynolds. Where an estate is modest an application for an order correcting the will can be made without notice if relevant beneficiaries consent to the order (see r 7.46(3) of the High Court rules).  However, where there is no executor noted the validated will cannot be probated.  Instead an application for a grant of adminstration with the validated will annexed will be required.

Evidence

Where the terms of a will are ambiguous or uncertain, s 32 of the Trustee Act provides that the Court can use external evidence to interpret the words to resolve the matter.  For example in In the Estate of Bruce David Grainger an applicaiton for probate was made in solemn form (rather than common form) as the will contained errors and some degree of ambiguity as the will dealt with property that was also subject to a relationship property agreement.  The Court corrected the errors (as permitted by s 31).  However, this section could not be used to address the “potential issues about the inter-relationship between that agreement and the will”. In this regard the Court noted at [12] that:

“On the issue of the inter-relationship between the will and the Relationship Property Agreement, the Court can, under s 32 of the Act, use external evidence to interpret the words to resolve any ambiguity or uncertainty. On the affidavit evidence, I am satisfied that the interpretation contended for in the order, on which the parties are agreed, is correct.”

Law relating to s 31 of the Wills Act

The following from the decision of Gendall J in Haldane v Haldane usefully outlines the history of the law of rectification rearding wills:

[13] In New Zealand the concept of rectification has its modern origins in the dicta of Fisher J in Re Jensen where he recommended revisiting long-standing authority holding that there is no power to rectify a will in the absence of either fraud, or mistaken insertion of words without the testator’s knowledge.5 A legislative power to rectify, or correct, was recommended by the Law Commission in its project, Succession Law: A Succession (Wills) Act.

[14] In particular, the Law Commission observed:

C41 Sometimes a mistake creeps into a will unobserved by a testator and is not discovered until after the testator dies. Courts may be able to remedy such a mistake in construing the will. To give effect to the testator’s intention deduced from the entire will not by conjecture but with reasonable certainty, a court construing a will might supply omitted words and modify the words actually used…

C43 Section 28 is meant to give the courts a power in such cases to rectify a will. Courts would need to be satisfied that rectification was appropriate, for example, because a solicitor gave evidence that certain words were used in the draft and approved by the will–maker, but those words were accidentally omitted or transposed when the document was formalised…

[15] The section proposed by the Law Commission was subsequently enacted as s 31 of the Wills Act 2007, which relevantly provides:

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.

[16] Before moving on to consider the application of s 31 to the present case, it is useful to contemplate precisely what Parliament sought to achieve by enacting s 31.

When contemplating the use of s 31 the Court will have regard to earlier wills to establish whether that throws light on how the error arose.  See Marfell and Marfell v Marfell

What was Parliament’s intention?

[17] The first reading of the Wills Bill, which was introduced on 8 September 2006, occurred on 10 October 2006. In moving that the Wills Bill be read for the first time, the Hon Clayton Cosgrove stated:

The intention of the Wills Bill is to make the law clearer, ensure that better effect can be given to will-makers’ intentions, and make it easier for people to make wills. … The Wills Bill therefore seeks to restate the law in a single statute in plain, modern language.

… A further problem is that wills are not always as clearly drafted as one might hope, and errors can slip in unnoticed.

The court will be able to correct errors in certain cases, and make greater use of external evidence to interpret wills. Overall, these changes will operate to ensure that will-makers’ intentions are upheld and not frustrated by technicalities.

Wills are of practical day-to-day significance for all New Zealanders. A will is an instrument that expresses a person’s wishes after he or she dies, and enables that person to take care of his or her loved ones and property and assets. The proposed reforms will improve the legal framework for will-making. They will make the law easier for people to understand, and reduce the risk of a will-maker’s wishes being defeated by a badly drafted or incorrectly executed will, and will also allow better effect to be given to a will-maker’s intentions.

[18] A further salient remark in the first reading was made by the Hon Nicky Wagner:

People who have current wills and are still alive to consider the options can rest easy that they will not need to change their wills unless those wills are particularly badly drafted or full of errors—and, let us face it, if that is the case, they might be wise to make changes any way. Under the new bill the High Court has the ability to correct errors. It has a much higher power to correct errors and to use internal evidence to interpret wills for the prime reason of making sure that the will-makers are getting what was intended.

[19] The Bill was read a first time and referred to the Justice and Electoral Committee. The committee recommended no substantial change to cl 31 (what is now s 31). The Wills Bill was read a second time on 8 May 2007. The Hon Chris Auchinvole commented:

The changes will affect only wills made after the bill comes into force, with two exceptions. The High Court can modify wills: it has the powers to correct errors in wills, and it can also use external evidence to interpret wills made before the bill comes into force. There is, my solicitor friends tell me, some danger in this, in that it gives the High Court the power to interpret the intention of the will-maker, previously known as the testator. That will continue as a vulnerability under this legislation

[20] Little was added to the discourse during the committee stage. In the third reading several poignant comments were made. In particular, the Hon Lianne Dalziel remarked:

To the extent that the bill modernises the substantive law relating to wills, it essentially follows the Law Commission’s proposals. These changes improve the legal framework for will-making.

They make it easier for certain people to make wills and mitigate the risk of a will-maker’s wishes being undermined by a poorly drafted or executed will. Overall, they allow better effect to be given to will-makers’ intentions

Wills speak for people who are no longer able to speak for themselves. Legislation that makes it clear what is required for an effective will eases the burden on the will-maker. Legislation that also offers avenues for overcoming defects in the will, when the will-maker is no longer able to do so for himself or herself, eases the burden on those who are left behind…

[21] Though ss 31 and 32 amounted to some of the more substantial changes, there was remarkably little debate on the breadth of the provisions, or their effect. That said, the debates do indicate that the intent was to make it easier to give effect to testamentary intent. Though that proposition does not go so far as to confer carte blanche upon the Courts to correct all errors, it was an important milestone in the modernisation and liberalisation of the law relating to wills.

Scope of the section

Perhaps the most concise statement of the reform heralded by s 31 is recorded in Dobbie’s Probate and Administration Practice, where it is commented:

Section 31 increases the traditional powers of the court in the following ways:

(a) in the case of a clerical error, the court is not limited to omitting or removing words;

(b) the court can “correct” the will which includes the powers to add in or substitute words or phrases inserted erroneously in a will, and extends to rewriting parts of the will;

(c) the court’s power does not appear to be restricted in any way by the fact that the will-maker or drafter has read over or approved the words inserted by error;

(d) the power to correct is not negated by the possibility that the meaning of the will could be significantly altered by the court’s correction;

(e) drafting errors or use of inappropriate language (either by the drafter or will-maker) can be corrected by the court. This includes careless drafting, the use of words in relation to which the drafter has failed to understand the instructions and the use of words which do not achieve the objective intended (perhaps through failure properly to understand the law).

[22] Building on this, I think one of the most important mechanisms contained in s 31, and certainly the most germane to this case, is the ability to correct clerical errors. The scope of this power was considered recently by the Supreme Court in Marley v Rawlings, in relation to the equivalent UK legislation, the Administration of Justice Act 1982 (UK), s 20.14 Lord Neuberger, delivering the lead judgment of the Court, said:

71 The best judicial summary of the effect of the cases so far decided on section 20(1)(a) was given by Blackburne J in Bell v Georgiou [2002] WTLR 1105 , para 8 (quoted in para 7-42 of Hodge on Rectification ):

“The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert … The remedy is only available if it can be established not only that the will fails to carry out the testator’s instructions but also what those instructions were.”

If, as a result of a slip of the pen or mistyping, a solicitor (or a clerk or indeed the testator himself) inserts the wrong word, figure or name into a clause of a will, and it is clear what word, figure or name the testator had intended, that would undoubtedly be a clerical error which could be rectified under section 20(1)(a) .

It is hard to see why there should be a different outcome where the mistake is, say, the insertion of a wrong clause because the solicitor cut and pasted a different provision from that which he intended. Equally, if the solicitor had cut and pasted a series of clauses from a different standard form from that which he had intended, I do not see why that should not give rise to a right to rectify under section 20(1)(a) , provided of course the testator’s intention was clear.

[23] The Court was then confronted with a contention that even if the definition of “clerical error” is as wide as articulated above, it surely is not wide enough to encompass a clerical officer giving a testator the wrong will.  Lord Neuberger met this submission in the following terms:

I accept that the expression “clerical error” can have a narrow meaning, which would be limited to mistakes involved in copying or writing out a document, and would not include a mistake of the type that occurred in this case. However, the expression is not one with a precise or well-established, let alone a technical, meaning. The expression also can carry a wider meaning, namely a mistake arising out of office work of a relatively routine nature, such as preparing, filing,, sending, organising the execution of, a document (save, possibly, to the extent that the activity involves some special expertise). Those are activities which are properly described as “clerical”, and a mistake in connection with those activities, such as wrongly filing a document or putting the wrong document in an envelope, can properly be called “A clerical error”.

[24] Lord Neuberger then went on to provide support for the notion that the wide meaning ought to be preferred. The United Kingdom Supreme Court’s decision was recently noted by MacKenzie J in Re Subramaniam, where a husband and wife had inadvertently signed each other’s wills.18 There, MacKenzie J considered that the issue could be solved by s 14 validation of the will prepared for the husband, but signed by the wife. However, MacKenzie J also observed, in reliance on R v Ioane, that s 31 provides an alternate avenue for achieving the same outcome, which was the course adopted in Marley v Rawlings.

[25] As will be seen below, the approach the New Zealand Courts have so far taken to the issue of what constitutes a clerical error, has not been unduly narrow. There appears to have been a concerted effort to give effect to the purpose and intent of the new wills regime. This has signalled somewhat of a paradigm shift from the rigidity of the past. For my part, therefore, I see no reason to unduly delimit the scope of the remedy. Where a mistake is made in the course of clerical duties (potentially including an execution error), that is quite capable of falling within the auspices of s 31 and would be open to correction.

Approach to correction

[26] Re Segelman, a United Kingdom decision, held that when contemplating the exercise of the equivalent rectification provision, the Court was required to consider three questions:

First, what were the testator’s intentions with regard to the dispositions in respect of which rectification is sought. Secondly, whether the will is so expressed that it fails to carry out those intentions. Thirdly, whether the will is expressed as it is in consequence of either (a) a clerical error or (b) a failure on the part of someone to whom the testator has given instructions in connection with his will to understand those instructions.

[27] What is important is that the Court consider the intention of the will-maker and measure that against the final will, as presented to the Court. If there is a discrepancy, it must be considered whether the discrepancy can fairly be attributable to one of the factors in s 31(1)(a) or (b). If so, the Court can then proceed to correct the will. The paramount consideration must always be to give effect to the intention of the will-maker.

[28] Section 31, and indeed, ss 32 and 14 ( as comprising a further extension of the relaxation of formality under the Wills Act 2007) were not intended to be a panacea for correcting all anomalies and abnormalities in wills however. The overarching theme is providing to the Court mechanisms to give effect to the will-maker’s intent, but no more. Wills are not be rewritten because of the dissatisfaction of families, or where their very validity is called into question for example through incapacity, want of knowledge and approval, duress, undue influence or the like.

References:

  • Wills Act 2007, s 31, 32
  • Estate of Gibson [2013] NZHC 1524
  • Estate of Robertson [2013] NZHC 2723
  • Re Segelman [1996] Ch 171
  • In the Estate of Bruce David Grainger [2013] NZHC 3371
  • Estate Laing [2013] NZHC 2900
  • In the estate of Hank Reynolds [2013] NZHC 3245
  • Estate of Averil Johnstone [2014] NZHC 2266
  • In the Estate Stephen Dougla Bowness [2015] NZHC 339
  • Marfell and Marfell v Marfell [2015] NZHC 2714

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