Burnage v Gleeson HC Whangarei CIV 2010-488-151

[2010] NZHC 1600

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2010-488-151

IN THE MATTER OF     THE FAMILY PROTECTION ACT 1955

ANDIN THE MATTER OF  THE ESTATE OF WINIFRED LOIS GLEESON

BETWEEN  WINIFRED JUNE BURNAGE Appellant

ANDEDWARD MAX GLEESON JOHN LLOYD GLEESON DONALD NOEL GLEESON RAYMOND LESLIE GLEESON DAVID MARTIN GLEESON First Respondents

ANDSTUART ROSS FOY ELIZABETH JOY CARTER Second Respondents

Hearing:         16 July 2010

Counsel:         SM Henderson for Appellant

RJ Harte for First Respondents

Judgment:      27 August 2010

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 27 August 2010 at 4.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Henderson Reeves Connell Rishworth, P O Box 11, Whangarei for Appellant

Webb Ross, Private Bag 9012, Whangarei 0148 for First Respondents

BURNAGE V GLEESON AND ORS HC WHA CIV-2010-488-151  27 August 2010

Introduction

[1]      The appellant (June) was the principal beneficiary of the estate of her mother. Five of her seven siblings successfully applied in the Family Court at Whangarei under the Family Protection Act 1908 for further provision from the estate.   June appeals against the decision of Judge Maude.  She claims he erred in finding there was a breach of moral duty by the testatrix.  She says further that, even if there had been a breach of moral duty, the sums awarded were excessive.

Factual background

[2]      Mrs Gleeson died on 3 August 2006 aged 86 years.  Her husband had died on

14 May 1994.  They were a hardworking couple who, while bringing up their large family, had broken in farming land at Pukenui close to the Houhora Harbour in Northland.   In the early years especially money was short.   The children were all expected to do their bit.  Most of them left school as soon as they could, either to work on the farm or to find work so they could pay their own way.

[3]      The original farm comprised 18.2 hectares.   Over the years Mr and Mrs Gleeson took the opportunity to acquire adjoining blocks as they became available. At one stage they had land holdings totalling over 220 hectares.

[4]      Mr Gleeson, no doubt supported by Mrs Gleeson, was determined that each of the children should, one way or another, receive a part of the farm.  During his lifetime he gave (directly or indirectly) parts of the farm to some of the children. When he died, all but one of the others received a parcel of land in his will.

[5]      Judge Maude recorded that, at 2007 land values, the children had received by way of gift or devise land to the following value:

Max (now aged 67 years)                 $365,000

John (66)  $510,000

Donald (64)	$405,000
June (63)	$599,000
Raymond (59)	$560,000
David (52)	$595,000

[6]      The eldest child, Bryan (now 70 years of age), sustained serious head injuries in an accident.  He bought a house that a cousin had built on farm property.  Bryan told his father that he did not want any land in his name as long as he had a life interest in the house.

[7]      The second eldest child, May, died in 2006, a few months before her mother. She did not receive any of the farm land in her own name but when she and her husband divorced Mr Gleeson gave him some ten acres of land on the basis that he would make no further claim to the matrimonial home.

[8]      So, when Mrs Gleeson made her will in 1998, all of the children except Bryan had already received significant benefits.  All of the farmland acquired over the years had been disposed of except the original farm and homestead which, with assistance from family members, she had continued to farm since her husband’s death.  The further provision she made in her will was as follows:

a)        To John a Bedford truck and manure spreader. b)       To David her principal motorcar.

c)        To  June  her  land,  plant  and  equipment,  stock  and  furniture  and personal possessions.

d)       The residue to be divided equally between the eight children.

[9]      By the time Mrs Gleeson died the vehicles and machinery left to John and David were of little value.  The farm was the main asset; land and buildings were valued in 2008 at $640,000.  As at the date of hearing, the value of the provision made for June was $737,641.  Each child would receive $14,621 from the residue.

[10]     No issue is taken with the fact that June was singled out for special treatment in her mother’s will.  She occupied a special position in the family.  Apart from time away  at  secondary school  (when  she  lived  with  relatives  in  Ngaruawahia),  she remained on the farm all her life.  When she married at the age of twenty, she was given a five-acre block close to the farmhouse occupied by her parents.  She and her husband shifted a house onto it and have lived there ever since.   The five-acre holding was increased by a further ten acres on her father’s death.  June helped out on the farm throughout her parents’ lives and was the primary caregiver of both as their health deteriorated in old age.

[11]     The claimants’ case was that their mother also had a moral duty to make provision for them and their inheritance was inadequate to discharge that duty.

Judge’s decision

[12]     There was no claim by Bryan or by May’s children.   However, the first respondents sought to claim on their behalf.  Judge Maude accepted that they could do so under s 4(2) but said it would be quite inappropriate to provide for Bryan who had made it clear he did not want to benefit from his mother’s estate.  He took the view that, as May’s adult children had been served but had taken no steps, it would similarly be wrong to make provision for them.

[13]     In considering whether there had been a breach of moral duty by the testatrix, among the authorities referred to by the Judge was the following well known passage from the judgment of Richardson J in William v Aucutt::[1]

[1] William v Aucutt [2000] 2 NZLR 479 (CA) at [52].

... The test is whether adequate provision has been made for the proper maintenance and support of the claimant.   “Support” is an additional and wider  term than  “maintenance”.  In  using  the  composite  expression,  and requiring "proper" maintenance and support, the legislation recognises that a broader approach is required and the authorities referred to establish that moral and ethical considerations are to be taken into account in determining the scope of the duty.   “Support” is used in its wider dictionary sense of "sustaining, providing comfort".  A child's path through life is supported not simply by financial provision to meet economic needs and contingencies but also by recognition of belonging to the family and of having been an important part of the overall life of the deceased. Just what provision will

constitute proper support in this latter respect is a matter of judgment in all the circumstances of the particular case. It may take the form of lifetime gifts or a bequest of family possessions precious to its members and often part of the family history. And where there is no economic need it may also be met by a legacy of a moderate amount. On the other hand where the estate comprises the accumulation of the family assets and is more than sufficient to meet other needs, provision so small as to leave a justifiable sense of exclusion from participation in the family estate might not amount to proper support for a family member.

Judge Maude proceeded to analyse the claims of the first respondents by reference, first, to their financial needs and then to the wider sense in which Richardson J discussed the parental duty of support in Williams v Aucutt.

[14]     Judge Maude acknowledged that June had remained on the land and cared for both her parents as they grew old.  He said she “physically” contributed to the care of her parents, particularly her mother, to a level well in excess of the contribution made by her siblings.  He remarked on an “air of resentment” in June’s evidence and “an air of being shut out” expressed by the claimants, both of which he observed would not be warranted if reasonable steps had been taken to break down the barriers that had developed.  He concluded that “by reason of proximity and commitment”, June contributed most to her mother and it was reasonable that her mother provided more for her than she did for her siblings.  However, he said that does not mean that the deceased did not breach her moral duty to the claimants.

[15]     Judge Maude went on to consider the provision made for the claimants by way of gifts or devises of land.  He said that differences in the value of land received were not significant and provided no reason for the deceased to make adjustments for disparities such as they are.

[16]     The Judge then considered the financial position of each claimant for the purpose of considering whether any had demonstrated material or financial needs. His findings (with one correction) were conveniently summarised for the purpose of the appeal as follows:

Age	Pukenui land	Other land	Other assets	Gross family
2007 GV	income per
week
Max Gleeson	67	$375,000	$200,000	$230
John Gleeson	66	$850,000	$70,000	$495
Donald Gleeson	64	$520,000	$1,150,000	$40,000	$800
Raymond Gleeson	59	$565,000	$250,000	$830
David Gleeson	52	$145,000	$250,000	$1,100
June Burnage	63	$725,000	$30,000	$567

[17]     In the context of reasonable family expectations, the Judge concluded that:

a)       Max, as a beneficiary with modest earnings, had made out a need for further provision.

b)John, given the proximity of retirement, had also established a need, although “a lesser need than Max”.

c)       Donald had not established a need for material provision.

d)Raymond,  considerably  younger  than  the  others  and  with  more working years ahead of him, had not established a need for further provision.

e)       David, although earning well, had a low asset backing due, in part, to a marriage breakup, and had established a need.  The Judge proceeded on the basis that David’s only asset was the farm land.  It is accepted that, due to an erroneous schedule provided by counsel, he overlooked other land holdings to the value of $250,000 noted in the table above.

[18]     Judge Maude then went on to consider whether there had been a need for further provision under the second limb identified by Richardson J in Williams v Aucutt.  His findings on this issue are as follows:

[43]      For each child receipt of $14,000 in my view would leave them in a situation, where given that opportunity dictated that June provided the most contribution to her parents, they would feel a sense of exclusion where the

$14,000 to be received them each amounted to only approximately 1.75% of the mother’s estate.

[44]     The result is that, in my view, each claimant establishes a need for further provision. They determination I must make is one of quantum so that the minimum necessary to remedy the breach is provided.   This is not an exercise of re-writing the deceased’s will to, for example, divide it equally. It is an exercise of establishing what the appropriate sum should be to meet each claimant’s material and emotional needs while, at the same time, respecting the testatrix’s wishes.

[45]     I am satisfied that each claimant, looking through the eyes of a reasonable claimant child at the facts would conclude that notwithstanding that it appears to the Court that June’s views as to the merits of division were somewhat distorted perhaps by a sense of her having being left to do all the work, she nevertheless did that work and should receive credit for that as intended by her mother.

[19]     Judge Maude then considered the further provision that should be made for each claimant, including Donald and Raymond whom he had found did not have material need.  His decision was as follows:

[47]      The result is:

(a)In respect of Donald and Raymond I believe that a 6% distribution of the value of the estate properly provides for their emotional need to be affirmed as part of their mother’s family and meets her moral and ethical duty to them.  That amounts to a sum of approximately $50,000 each.  Each is to receive 6% of the value of the estate.

(b)In respect of Max and John I observe that Max is better off from a capital perspective than John but income poorer.  In my view, a provision of 12% of the value of the estate each or a sum that would amount to approximately $100,000 each is appropriate provision.  Each is to receive 12% of the value of the estate.

(c)For David who has reasonable income, but from an asset perspective is significantly poorer than Max and John I believe provision of 20% of the value of the estate or approximately $166,000 reflects appropriate provision.

He is to receive 20% of the value of the estate.

[20]     Judge Maude noted, in conclusion, that the further provision he had made would leave June with 44%.  He described it as a “significant provision and more than perhaps the Court might provide if the legislation simply provided for it to re- write the deceased’s will”.  He made it clear that the further provision he had made was in accordance with the principle that any award should be at the minimum level necessary to remedy the perceived breach of moral duty.

[21]     The appellant contends that there was no breach of moral obligation having regard to the earlier distributions of land, the relative affluence of the claimants, the benefits they received under the will and the testatrix’s obligation to provide for her daughter.   Mr Henderson submitted that none of the claimants demonstrated a financial need sufficient by itself to warrant further provision from their mother’s estate.   And, he said, the obligation arising from other sources – the moral and ethical considerations referred to by Richardson J in Williams v Aucutt – had been discharged by the land gifted to each claimant during their father’s lifetime and in his will.   Mr Henderson submitted that although the Judge asserted otherwise, he effectively re-wrote the will.

[22]     Mr Henderson pointed out also that the terms of the judgment resulted in Bryan and May’s children losing their entitlements.  They would be restored if the appeal is allowed and the provisions of the will are allowed to stand.

First respondents’ position

[23]     Mr  Harte  agreed  that  the  provision  made for  Bryan  and  May’s  children should be restored.   In all other respects he defended the Judge’s findings.   He submitted that all claimants had made out a claim for further provision and that, the error in David’s financial position notwithstanding, the amounts awarded were appropriate to the moral duties owed to each claimant.

Approach to appeal

[24]     Traditionally the approach to be taken on appeals against decisions under the

Act was as articulated in Little v Angus[2] where it was said at 127:

... On an appeal the Court will not substitute its discretion for that of the Judge  at  first  instance  unless  there  be  made  out  some  reasonably  plain ground upon which the order should be varied.

[2] Little v Angus [1981] 1 NZLR 126 (CA).

This passage was quoted with approval by the Court of Appeal in Henry v Henry[3]

[3] Henry v Henry [2007] NZFLR 640 at [24].

[25]     The  Supreme  Court’s  judgment  in  Austin  Nichols  & Co  Inc  v  Stichting Lodestar[4]  has intervened and excited a certain amount of debate as to whether it affects the approach of an appellate court in family protection cases.  In O’Connor v Denee[5]  Allan J took the view that it had not materially altered the test.  He said at [42]:

[4] Austin Nichols & Co Incorporated v Stichting Lodestar [2008] 2 NZLR 141 (SC).

[5] O’Connor v Denee HC Rotorua CIV-2008-463-96, 22 December 2008, at [42].

In Blackstone v Blackstone (2008) 19 PRNZ 40, Glazebrook J for the Court of  Appeal  confirmed  that appeals  from a  discretion  are  not  affected  by Austin Nichols and that the principles in May v May (1982) 1 NZFLR 165 continue to apply.   Decisions under the Act are essentially discretionary. Some reasonably plain ground ought to be made out before this court intervenes on appeal:  Little v Angus at [127].

In the National Heart Foundation of New Zealand v Carroll[6]  Wild J discussed the issue but did not need to express a final view.

[6] National Heart Foundation of New Zealand v Carroll HC Nelson CIV-2008-442-495, 25 February 2009, at [5]. 

[26]     While  there  is  undoubtedly  a  discretionary  element  in  the  evaluations required of a Judge in determining whether there has been a breach of moral duty and what may be required to repair a breach, I tend to the view that the application of Stichting Lodestar’s principles would oblige an appellate judge to intervene if he or she concluded that a decision was wrong.   That is the duty of an appellate court “even where [its] opinion is an assessment of fact and degree and entails a value

judgment”.[7]   In my view, the ground has shifted somewhat.

[7] At [16].

Discussion

Bryan and May’s children

[27]     Whatever approach is adopted does not affect the position of Bryan and

May’s children.   There are indications in the judgment that Judge Maude did not

intend to cancel the provision made for them.  Their disinheritance may have been an unintended consequence of the means adopted to remedy the breaches.  Inadvertent or otherwise, the outcome was clearly wrong.   Their inheritance must be restored. Any awards to the claimants must come from June’s share of the estate.

Moral duty

[28]     In assessing the moral duty owed by the deceased, the relevant date is, of course, when she died.   Her circumstances, as well as those of the children, had materially changed since she made her last will eight years before.

[29]     There  is  evidence  from  a  legal  executive  who  took  instructions  from

Mrs Gleeson and prepared the will.  Her notes are cryptic.  She recorded:

June probably will rent house as she has a home.   Dependable assistance throughout life.   Whereas June has been there the boys have worked elsewhere ... husband ensured boys have land if they wanted it.

The  legal  executive  said  that  the  concluding  remark  of  Mrs  Gleeson  that  she recorded was consistent with her knowledge of Mr Gleeson’s will, as she had acted on the administration of the estate.  As a result, she made no further enquiries of the testatrix.

[30]     The legal executive said that when she spoke to Mrs Gleeson when the will was executed, Mrs Gleeson told her that she thought her bank account held approximately $15,000 which they estimated would allow each of the children approximately $1,000 after expenses.  There is no other information as to the likely value of the estate or Mrs Gleeson’s understanding of what it might be worth at that time.

[31]     It is clear, however, that her assets increased significantly in value over the following eight years.  The residue exceeded $100,000.  The value of the land, which had a government value of $215,000 (at 1 September 2004), escalated rapidly.  As earlier mentioned, it was worth $640,000 in 2008.

[32]     There had been other changes in circumstances which may have influenced a wise and just testatrix.   In 1998 Mrs Gleeson would have had little cause to differentiate between the moral claims of her children, other than June and, because of his special needs, perhaps Bryan.   The other brothers were all earning, without special health or other needs, and even the eldest was some years away from retirement.  All owned parts of the farm.

[33]     During the intervening years the older sons moved closer to retirement and, as at the date of the Court hearing, two were reliant on national superannuation. Max’s means are undoubtedly modest.  Apart from the land he owns at Pukenui, his only significant asset is the house, worth $200,000, he owns jointly with his wife. He had a job at the date of death but was subsequently made redundant.  He and his wife rely on his national superannuation and small sums she is able to earn as a music  tutor.     I  would  not  differ  from  the  Judge’s  assessment  that  he  has demonstrated particular needs.

[34]     John’s assets of $920,000 comprise mainly the farm property – 76 hectares of marginal land.  He bought 55.7 hectares from his father in 1992 in order to help his father extricate himself from financial difficulties which had arisen as a result of ill health.   As his father’s health continued to decline, John agreed with him that he would farm both properties.  This continued after his death.  John farmed or looked after most of the family land, including the original farm owned by his mother. Earnings from the farm have been so low that John and his wife have at times received an unemployment benefit.  They are now mainly reliant on superannuation.

[35]     For some years John and his wife, Christine, worked the farm while they lived and worked in Whangarei.  Christine moved to the farm in 2001 and he joined her in 2004 when they sold the house in Whangarei.  Christine helped with the care of the deceased.  Like June, she was sometimes paid.  June acknowledges Christine’s assistance but sees John’s work on the farm as beneficial to both sides.  That is as may be.  However, it is not without significance that while John’s earnings from the farm were at a subsistence level, the deceased was able to build quite significant savings.

[36]     In my view, a wise and just testator in Mrs Gleeson’s position could well have recognised an obligation to make some further provision for Max and John. Their incomes were minimal and unlikely to increase.  The main asset of each – the farm property – does not generate any significant income and was held mainly for family reasons.

[37]   The position of David – the third son whom the Judge found to have demonstrated particular financial needs – is very different.   He has good earning capacity and, aged only 48 when his mother died, is much younger than the older two.  His reduced capital position resulted from the transfer to his former wife after

1999 of the most valuable parcel of farmland left to him.  I have reservations about the finding that he had demonstrated an economic need.

[38]     Judge Maude found that David had established a need for material provision because, although relatively young and earning well, he had assets of only $145,000. As earlier noted, this was incorrect.  David owns a house worth $250,000.  The value of his land holding is potentially misleading.  He received farmland to the value of

$595,000 under his father’s will.  When he separated from his wife, he transferred a valuable parcel to her.   If that had been taken into account, his financial position would have been roughly equivalent to Raymond, who is seven years older.

[39]     I turn now to consider whether the Judge was right to find that, regardless of financial need, the claimants had made out a  case for support by virtue of the intangible family considerations referred to in Williams v Aucutt.

[40]     Mr Henderson argued strenuously that the land already distributed discharged moral obligations to all children except June and enabled those children who had managed their affairs carefully to achieve financial security.   He implicitly acknowledged, and was undoubtedly right to do so, that all children would have been able to assert a claim for further provision had they not received gifts of farm land during their mother’s lifetime.  The question is whether the earlier gifts discharged any moral duty to make provision or merely reduced what was required to meet it.

[41]     It is relevant to consider in this context the relative value of the land gifted and what was retained.   The land distributed to the children has minimal value as farmland.  Even John, who augmented his holding by purchasing further land from his father, struggled to make a living.  My understanding is that the land was given to the children and has been retained largely for sentimental reasons.   It has not added significantly to the material wellbeing of the children.

[42]     In contrast, the original farm, which passed to Mrs Gleeson on her husband’s death, had  economic  as well as sentimental value.   It was the most productive farmland.   It is an attractive site overlooking the Houhora Harbour.   It was the original farm and identified by all children as “home”.

[43]     John deposed that his father told him on many occasions that one day the siblings would all get a part of the original farm.  June says that she does not recall her father speaking in this way but Donald, to whom his father often turned for advice, deposes that his father made it clear to him that once he and Mrs Gleeson had died, he wanted the family to share the original home block.

[44]     There was, accordingly, something in the nature of an expectation by at least some of the claimants, that they would ultimately acquire some sort of beneficial interest in the original farm.  This appears to be one of the factors which has fed the claimants’ view that something more should have been done to recognise family bonds, regardless of economic need.   Another, I sense, is that, although June undoubtedly made a unique contribution, which deserved special recognition all family members contributed in their own ways at different times.  All of the children worked hard on the farm as children and young men.  As an example only, Donald deposes that, from when he was fifteen until he was in his mid-twenties, Raymond was a fulltime unpaid worker on the farm.   He says Raymond “should be acknowledged and thanked for this”.  Even David, the youngest, was not exempt, as younger children sometimes are.

[45]     A feature of this case is the strength of family ties.  Strains have developed, remarked on by the Judge, between June and her brothers (Bryan excepted).  That

apart, family members have maintained close associations over a period of almost 70 years.  Donald states in his affidavit:

We are a close-knit family.  We have been welcomed, entertained or hosted at each of my siblings’ homes, with the exception of June’s.  June and her family have been welcomed into our homes and lives, but always failed to ever welcome us into theirs’.

[46]     While some of the brothers lived at a distance from the family home, all retained close connections with their parents and with the land.   Those who lived away visited and stayed on the farm when they could.

[47]     In later years the contributions of John and his wife to the collective interests of the family rivalled June’s, but all siblings seem to have done what they could – or what they were allowed to do.   A number of the claimants complain of being excluded by June or denied the opportunity to provide support and assistance to their mother.

[48]     In my view, Judge Maude was right to find that a wise and just testatrix in Mrs Gleeson’s position in 2006 would have done more to recognise the contribution that June’s siblings had made to family fortunes and welfare.  The gifts of parcels of farmland to the children went a long way to meeting her moral duty but, in the circumstances as they had developed twelve years after Mr Gleeson died, had not completely discharged it.

[49]     Mr Henderson submitted that, even if the claimants were able to establish a moral duty, this was a relatively small estate which, in terms of Allen v Manchester8[8] would be insufficient to meet the totality of moral claims upon it.  He argued that further provision could be made for the claimants only by reducing June’s share of the estate to less than that required to meet the testatrix’s moral to her.

[8] Re Allen (deceased), Allen v Manchester [1922] NZLR 218.

[50]     I do not agree.   Plainly, June’s claim is paramount.   But I agree with the Judge that the claims of her siblings can be appropriately met while still giving full recognition to her entitlement.

[51]     On the basis that the estate is sufficient to meet the needs of all family members, I agree with the Judge that the claimants are justified in feeling a sense of exclusion by the terms of the will.  Under it June receives 88% of the estate.  Her siblings and their survivors share the remaining 12%.  The extent of the disparity is not decisive or even, of itself, a factor, as the Court of Appeal made clear in Re

Shirley[9] and reaffirmed in Williams v Aucutt.[10]   The claimants each have to establish

[9] Re Shirley CA155/85, 6 July 1987.

[10] At [48]-[51].

that the provision made for him by the will was not, in the context of his own means and obligations and all other relevant circumstances, adequate to provide for his proper maintenance and support.[11]    What the comparison highlights is the extreme modesty of the provision made for the appellant’s siblings, all of whom had been in their own ways and as circumstances permitted, good and dutiful children and some of whom are worse off financially than she is.

[11] Williams v Aucutt at [48].

[52]     I pass to consider whether the Judge erred in the further provision he ordered. Mr Henderson was particularly critical of the significantly larger sum awarded to David.

[53]     After taking into account the benefits provided under the will, the Judge effectively determined that further provision of approximately $35,000 was required to recognise the contributions and position in the family of the five claimants.  He ordered further provision of an additional $50,000 for Max and John and $116,000 for David in recognition of their economic needs.

[54]     In my view, the further provision made for David was clearly excessive. That was largely due to the Judge’s mistaken impression of his capital position. Although, even after allowing for the house, he is worth less than any of his siblings, that is as a result of choices he has made rather than adversity.   He is relatively young, with good earning potential.  All things considered, I consider the testatrix’s moral duty to provide for him was no greater than her moral obligation to Donald and Raymond.

[55]     I   consider   the   further   provision   made   for   the   other   claimants   who demonstrated financial need was also overly generous, not because the awards could not be justified by reference to the moral duties owed, but because the result is to reduce June’s inheritance to below what is required to recognise adequately the singular contribution she made to the care of her parents.

[56]     Rather than order further provision by way of a percentage of the estate – which seems likely to have led to the inadvertent disentitlement of Bryan and May’s children under the will – I propose to substitute an order in dollar terms.  In lieu of their entitlement to one-eighth of the residue, I order further provision in the sum of

$75,000 each for Max and John and $50,000 each for Donald, Raymond and David. The entitlements of Bryan and May’s children to a one-eighth share of the residue (before allowing for the further provision for the claimants) are restored.

Result

[57]     The appeal is allowed.  The orders made in the Family Court are quashed.  In their place I make orders that, in lieu of their entitlement under the will to one-eighth each of the residue of the estate:

a)        Max and John shall receive legacies of $75,000 each.

b)        Donald, Raymond and David shall receive legacies of $50,000 each. [58]     While the appeal succeeds and June benefits as a result, the first respondents

have substantially succeeded in preserving the awards made in the Family Court.  In the circumstances, I consider that no order for costs is called for.

[59]     I reserve leave to the parties to apply for any further orders required to give effect to this judgment.