Wylie v Wylie

[2003] NZCA 99

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 231/02

BETWEENMOSS WILLIAM WYLIE

Appellant

ANDMAUREEN RUTH WYLIE

First Respondent

ANDRUTH KEREI WYLIE & EDITH MARY JOHNSTONE

Second Respondent

Hearing:22 May 2003

Coram:Gault P
Robertson J
Baragwanath J

Appearances:  M W Wylie in person

W A Belcher for First Respondent
G D S Taylor for Second Respondents

Judgment:4 June 2003 

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1]       Mr Moss Wylie, the son of the late William James Wylie, appeals against judgments under the Family Protection Act 1955 of John Hansen J in the High Court at Dunedin of 10 October and 19 November 2002.  The Judge determined that the testator had failed to make adequate provision for his wife, the first respondent Mrs Maureen Wylie, who is the administrator of his will, and ordered further provision for her.  The appellant seeks restoration of the terms of his father’s will under which he is the principal beneficiary, but modified to make fair provision for his sisters Ruth Wylie and Mary Johnston, the second respondents. We accept the appellant’s argument and allow the appeal on terms that Moss’s share is to be subject to a charge in favour of the payments to his sisters ordered by this judgment.

Background

[2]       My Wylie died as a result of an accident on 21 August 2000 when he was 70 years of age and his wife 63.  A child of the marriage had died shortly after birth.  Ruth is now aged 45, Mary 43 and the appellant Moss 42. 

[3]       At the time of Mr Wylie’s death the family property comprised a farm in south Otago comprising three adjoining blocks Salt Bush (238 hectares) owned in equal shares by Mr and Mrs Wylie, and Waikaro (129.36 hectares) and Wangaloa (128.74 hectares) on the latter of which the matrimonial home was situated, both owned by the WJ Wylie Family Trust (“the Trust”).  It is convenient to refer to the three blocks as “the whole farm”. 

[4]       Mr and Mrs Wylie each had a half share in the farm stock and plant.  Mrs Wylie also owned a property at Te Anau and a car.  A partnership between Mr and Mrs Wylie leased the Waikaro and Wangaloa properties from the trust and farmed them together with Salt Bush as a unit under the direction of Mr Wylie.  The whole farm was prior to Mr Wylie’s death and down to the present has been  managed by Mr Craig Anderson, who occupies a house on Waikaro.  Following Mr Wylie’s death Mrs Wylie assumed Mr Wylie’s role of overall direction of the farming operations.

The will

[5]       By his will dated 27 January 1984 Mr Wylie appointed as executors and trustees his wife and his solicitor (who renounced).   Moss received his father’s half interest in Salt Bush together with his stock and plant. Mrs Wylie received all furniture and other household items.  The remainder of his estate was divided equally among the three children.  

The proceedings

[6]         Mrs Wylie and her daughters were concerned at the absence of more substantial provision in the will for her and by the differential provisions for Moss and his sisters.  Mrs Wylie issued proceedings against herself as administrator of the will; her counsel have represented her in both capacities in the High Court and in this Court.  She joined in addition the trustees of the Trust, claiming under the Matrimonial Property Act 1963 that the trust property was matrimonial property and seeking an order vesting in Mrs Wylie property owned by the estate and by the trust in such shares or in such areas as the Court might see fit.  A second cause of action claimed against the administrator that the will breached a moral duty owed to Mrs Wylie by the testator and claimed relief under the Family Protection Act.  Other causes of action do not require separate mention.

The claims by Ruth and Mary

[7]       Statements of claim were also filed by the testator’s daughters, Ruth and Mary, each claiming relief under the Family Protection Act.

The deed of appointment

[8]       The Trust Deed provided that, in default of appointment, Moss as the son of Mr and Mrs Wylie should on the termination of the Trust rank for a triple share against the single share of his sisters as the other residuary beneficiaries. But on 4 September 2002, nine days before the hearing in the High Court, the trustees of the Trust by deed of appointment irrevocably appointed the income of the trust to Mrs Wylie for her life or until she should sooner cease to be an advisory trustee of the Trust, subject to their power to retain money required to meet capital expenditure of the trust.  She was granted the right of continued residence in the homestead at Wangaroa so long as the trust owns the property.  The capital of the Trust was effectively appointed equally to the three children of Mr and Mrs Wylie subject to Mrs Wylie’s interest.  The appointment was treated as settling the claims against the trustees of the Trust.

The decision of the High Court

[9]       In his reserved judgment of 10 October 2002 John Hansen J held that there had been breach of moral duty owed to Mrs Wylie and to the daughters.  In a supplementary judgment of 19 November 2002 the Judge set aside the gift to Moss of half of Salt Bush and half the stock and plant and the bequests of residue to the children and substituted an interest in the estate in favour of Mrs Wylie for her life or until she should cease to be an advisory trustee of the family trust with the residue to go as to 60% to Moss and 20% to each of Ruth and Mary.  The judgment conferred on the trustees power to carry on the business of farming.  The will was further amended to provide

15.      I declare my trustees are authorised to provide a home for my said wife.

The submissions on appeal

[10]     Mr Moss Wylie, who conducted his own argument, pointed to the anomaly of the declaration that the trustees were authorised to provide a home for Mrs Wylie, when as a result of the appointment of 4 September 2002 she was already assured of continued residence in the matrimonial home.  He submitted that the trial Judge had not had the fact and significance of the appointment put properly before him and as a result fell into error by failing to appreciate the full extent of the provision for Mrs Wylie.  He accepted that, as the Judge directed himself, Mrs Wylie should

…be provided for in a way which would enable her to continue living in much the same manner as she had done when the testator was alive

Re Z [1979] 2 NZLR 495, 499 per Richmond P.

But he submitted that, contrary to the Judge’s conclusion, it was not necessary in order to do so to add to her assets his father’s half interest in Salt Bush and in the stock and plant.  As he had done in the High Court, he submitted that provision should be made for his sisters.

[11]     Mr Taylor for the daughters and Mr Belcher for Mrs Wylie challenged Mr Moss Wylie’s submission that the Judge was not well aware of the appointment of 4 September 2002.  Mr Belcher submitted that the absence of provision in the will beyond the furniture and other household items itself evidenced breach of moral duty owed to Mrs Wylie which required judicial intervention.  He submitted that for her to be able to continue living in much the same manner as she had done when the testator was alive required that she receive a life interest in the whole property which she could manage and from which she could retain the income for as long as she wished.

[12]     For the daughters Mr Taylor adopted as his prime submission the argument accepted by the Judge that there was breach of moral duty owed to Mrs Wylie in recognition of which his clients agreed to defer their claims until her death.  His alternative submission was to adopt the submission of Mr Moss Wylie that there was breach of moral duty to them which warranted provision out of the estate.

The facts

[13]     Mr and Mrs Wylie married in 1956 when he was 26 and she 19.  He had worked as a wool buyer, shearer and freezing worker; neither had a farming background.  Mr Wylie had no assets; Mrs Wylie a cottage at Hampden near Oamaru.  For the next 44 years each contributed unstintingly to the marriage and, until Mr Wylie’s death, to the acquisition of the assets discussed in this judgment. 

[14]     Mr Wylie was the primary farm worker, contributing to the marriage both physical work of notable dimensions on and off the farm (for example he joined a shearing gang to bring in extra income), and by formidable gifts of vision and administration.  But Mrs Wylie too gave her all (as with the sale of the Hampden cottage to assist the family budget).  She made the multiple contribution of working on the farm to the extent she was able in addition to caring for the children and qualifying and attaining distinction in her profession as a teacher.  While teaching took her away from home during the week she did it as a loyal spouse with the full support of her husband, each realising that the time apart was the price of her being able to fulfil her part in a loving, sustained and mutually supportive marriage.  Mrs Wylie fed the shearers and cropping workers; grazed sheep along road verges; kept 100 hens and sold the eggs; milked four cows and sold the cream.  As the Judge found, her contribution went further than the norm of wives of farming marriages: in 1971 when the farm’s income was insufficient, Mrs Wylie obtained employment as supervisor for the IHC school at Kelburn Grove in Balclutha and obtained qualifications as a schoolteacher.  She earned up to $59,000 a year as a Principal and continued to work until in 2002 at the age of 65 she reached her well‑earned retirement.  There was no challenge to the Judge’s assessment

[19]  I am quite satisfied that [Mrs Wylie] made a mammoth contribution throughout her relationship with [her husband].  They started with virtually nothing, and by dint of extreme hard work achieved much…

[15]     In the early 1960s Mr and Mrs Wylie bought with the help of a State Advances loan his mother’s small farm at Ngapara, North Otago, on which the couple had been working.  Because of concern by Mr Wylie’s mother that there had been divorces in the family, title was taken in Mr Wylie’s name.  After four successive years of drought in 1965 the couple moved to South Otago where they bought Salt Bush, using the proceeds of the Ngapara farm, a vendor’s mortgage, a loan from Mr Wylie’s mother and a further State Advances loan available because the Ngapara farm had been uneconomic.  Again title was taken in Mr Wylie’s name.

[16]     Mr Wylie accepted major responsibility for farming the property and for the planning that resulted in the acquisition of further land.  He also took steps to make provision for his wife.

a)In December 1977 he established the W J Wylie Family Trust in order to buy a 40 hectare block known as Haggett and Beck which was farmed in conjunction with Salt Bush.  The purchase was funded by a loan from Mr Wylie; the trust procedure was used to protect Mrs Wylie and the family from death duties in the event of Mr Wylie’s death.

b)In 1982 he arranged for a consent order under the Matrimonial Property Act 1976 vesting in Mrs Wylie a half share of Salt Bush, subject to a modest debt back.  He kept the farm stock and plant in his name; Mrs Wylie kept a property at Te Anau and had vested in her a car, the furniture in the matrimonial home, life policies and an advance by Mr Wylie to the Trust.

c)In 1983 using funds from the sale of Haggett and Beck the Trust purchased the further 129.36 hectares adjoining the Salt Bush property and known as Waikaro.

d)In 1990 a half share in the stock and plant was transferred to Mrs Wylie.

e)In 1993 the Trust purchased the further 128.74 hectares of land known as Wangaloa adjoining both the Salt Bush and Waikaro properties.  The Trust house in Wangaloa became the matrimonial home and is Mrs Wylie’s place of residence. A partnership between Mr and Mrs Wylie leased the Waikaro and Wangaloa properties from the trust and farmed them together with Salt Bush.  For over 20 years the farming operation has been managed successfully under the direction of Mr Wylie by Mr Craig Anderson, who occupies a house on Waikaro.

[17]     In a letter of 12 March 1990 Mr Wylie instructed his solicitor that he wished his son to take over the farm and sought advice on a programme for gifting stock and plant for that purpose.   That did not occur.  But there is no reason to doubt that the testator, a man who had regular contact with his professional advisers, well knew the terms of the will which he left unaltered until his unexpected death.

Mrs Wylie’s claim

[18]     The Judge found that at the date of her husband’s death Mrs Wylie’s assets relating to the farm, including her half share in Salt Bush  ($488,000) were worth $822,842:

Her car was valued at  $5,000

She owned as well a holiday house at Te Anau         $100,000 

So her total assets were worth   $927,425  

[19]     As a result of the appointment of 4 September 2002 Mrs Wylie’s entitlement to continue in possession of the matrimonial home was confirmed.  She was also entitled to the whole of the income from the trust, the assets of which as at 21 August 2002 comprised the Waikaro and Wangaloa land and improvements valued at $893,700.  

[20]     The revenue of the trust for the year to 30 June 2002 comprised rental from the lease of its land to the partnership $40,000 less expenses of $28,789 (accountancy fees, interest on an advance to the partnership $329,654 and depreciation) being $11,211 net.  

[21]     The Judge assessed Mrs Wylie’s income from the farming partnership and the family trust at $26,000 per annum which with Government Superannuation $12,911 totals nearly $39,000. There was no evidence to suggest that such income would dwindle unless the whole farm remained intact.

[22]     The law entitles Mrs Wylie to generous recognition of her long and effective contribution to the marriage and to the creation of the family assets.  But even for an exemplary wife such as Mrs Wylie it limits her claim to the extent of deficiency in terms of the statutory moral and ethical standards considered by this Court in Williams v Aucutt [2000] 2 NZLR 479 of her need of proper “maintenance” and her entitlement to the “support” that includes due recognition of her role in the family. The issue is whether that was not duly provided to her by the successive acts of recognition by Mr Wylie and the trustees.

[23]     The Judge’s decision to alter the devise to Moss of the estate’s half interest in Salt Bush was not expressed to be due to any conclusion that receipt of half the Salt Bush farm, half the stock and plant, and the whole of the income from the trust on top of her own lakeside property and car were inadequate provision.  It seems to have resulted rather from

a)his conclusion that the parties had fallen out to such an extent that they could not work together in operating the whole farm; and

b)the unchallenged evidence from one of the trustees, Mr Dodds, a chartered account who had long experience of the farm as a trusted advisor to Mr Wylie, that the trust property was not capable of standing alone without Salt Bush as an economic unit.  At trial Moss gave evidence that

…if the will stood and my mother was a co-owner with  myself and we could not reach a partnership agreement then I believe the best solution for the farm would be for it to be sold.

[24]     Moss had expressed the wish to manage the whole farm and had challenged his mother’s capacity to do so.  But he recognised that his half share could be enjoyed without his becoming manager.  Mrs Wylie however wishes to continue acting as manager as she has done since her husband’s death with the assistance of Mr Anderson and advisers.  Although in the future she may wish to buy a small cottage to live in, for the present she is happy living on the farm where she feels quite strongly the presence of her late and beloved husband.

[25]     Moss ran his own farms from 1986 to 1998, developing a run down crop farm into a high producing fattening farm and achieving excellent lambing percentages, and has a Trade Certificate of Farm Management from a two year correspondence course.  Some doubt was expressed about his ability to run the farm, based upon the fact that he had found it necessary to sell the last of four farms he had owned.  And Mrs Wylie deposed that her husband’s dream of having their only son working beside him was never realised; he made several attempts to encourage Moss to buy into the farm but he never did so. She stated that Moss had not worked on the farm for many years and was clearly concerned at some things that had been said which it is unnecessary for us to recite.  But in a generous observation she said

I do not deny that you and Gail [Moss’s wife] have the ability to farm.  You have had several farms, Moss and you have your various properties in Invercargill, which is evidence of your organisational skills.  Gail is very well respected among the Dairying community and is very successful.  There is a lot of talent among all of you but none of you are able to be here fulltime.

[26]     We do not share the Judge’s view that the case turns on whether or not the parties are able to work together to operate the whole farm as a unit; and are satisfied that the primary gift to Moss of the half-interest in Salt Bush and the farm’s stock and plant must be restored.   The basic premise of the judgment – that the farm must be retained intact in order to maintain Mrs Wylie’s way of life, which cannot be achieved if Moss owns half of Salt Bush and half the stock and plant – cannot resist analysis of her legal and factual position.  She is entitled to possession of the trust property, including the matrimonial home, for as long as she wishes.  She is entitled to the whole income of its land, valued at nearly $900,000.  She has in addition over $800,000 in assets of her own.  She can if she chooses elect as 50% owner of Salt Bush and the stock and plant to compel a sale of the former and an apportionment of the latter.  The trustees are bound to act reasonably in utilising the valuable trust land.  Leasing it to a purchaser of Salt Bush is one logical option; leasing to a neighbour is another.  There is no reason for Mrs Wylie to relinquish her occupation of the matrimonial home; or for her standard of living to diminish. 

[27]     It is true that Mrs Wylie cannot insist on managing the half interest in Salt Bush and in stock and plant that were left to Moss.  But that was never part of her way of life.  The law does not entitle a spouse to more than is required to fulfil the testator’s moral duty.  That of Mr Wylie was discharged by the substantial provisions we have described.  As noted in Flathaug v Flathaug CA237/02, 13 May 2003 para [36]

In assessing [a Family Protection claim] entitlement…to benefit under the Trust is relevant.

Had the significance of the appointment under the trust and thus the actual position of Mrs Wylie been fully drawn to the attention of the Judge we do not doubt that he would have viewed her position differently.

[28]     We do not share the Judge’s advantage of having seen and heard the witnesses during their brief cross‑examinations. But while the point is not necessary to our decision, we add that we have been impressed by the conduct and attitudes both of Mrs Wylie as recorded in the evidence and exhibits and of Moss, whose handling of his own case has been exemplary in the respect displayed to his mother and sisters.  Now that their legal position has been clarified we will not be surprised if the parties are now able to make use both of Moss’s skills and experience and Mrs Wylie’s obvious intelligence and wisdom in the way that Mr Wylie, by linking their interests, clearly envisaged.  That is however a matter for them and their advisers.

The daughters’ claims

[29]     The exact figure for residue of the estate is unclear.  An assessment prepared on behalf of Mrs Wylie, presumably in her role as administrator, appears to have been of $168,885, giving Ruth, Mary and Moss each an entitlement under the will of $56,295.   But there were no estate accounts prepared by a chartered accountant.  The estate has been charged with the costs of all parties other than Moss, despite the Judge’s direction that there be no order for costs, implying that each party should bear his or her own costs.  It is the duty of Mrs Wylie, as administrator, to ensure that the accounting is duly performed.

[30]     On the premise that the figure of $56,000 odd is approximately correct there is no challenge to the Judge’s finding, supported by Moss, that there was a clear breach of the moral duty owed to Ruth and Mary.  This case does not concern the kind of large estate which allows consideration of their claims without risk of  competition among competing claims.  Rather it falls within the class discussed by Salmond J in In re Allen (deceased) [1922] NZLR 218, 221

…owing to the smallness of the estate and to the nature of the testamentary dispositions, the applicant is competing with other persons who have also a moral claim upon the testator.  Any provision made by the Court in favour of the applicant must…be made at the expense of some other person or persons to whom the testator owed a moral duty of support.  The estate is insufficient to meet in full the entirety of the moral claims upon it, in the sense that if the testator has possessed more he would have been bound to do more for the welfare of his dependants.  In such a case all that the Court can do is to see that the available means of the testator are justly divided between the persons who have moral claims upon him in due proportion to the relative urgency of those claims. 

[31]     So in appraising each daughter’s respective entitlement we must do so in the light not only of their means and obligations but of all other relevant circumstances. These include the testator’s wishes in relation to Moss as expressed in the will and also factors that would have entitled him to claim had provision not been made for him.

[32]      Mr Belcher submits that there should be an award of $200,000 to each.  We have recorded that Moss acknowledged their entitlement to provision; he proposes $120,000 for Mary and $60,000 for Ruth as reflecting their respective financial needs.

[33]     The Judge made the following findings, which were not challenged

[11]     It is apparent from the affidavits of all three children that they made significant contributions, working on the farm during the holidays and such like.  In particular, Ruth has made an ongoing contribution to the farm.

[12]     In 1976 Ruth went to Otago University, and returned home every second weekend to help her father on the farm.  She failed exams and did not return, taking a job with a shearing company.  On the 12^th March 1977 she came back to the family farm and worked with her father.  She ultimately obtained a job with MAF, and during the three and half years she worked there she saved up “leave in lieu of overtime” and took “leave without pay” so she could help her father with the six weeks of lambing during 1978, 1979 and 1980 lambing seasons.  In the Christmas holidays she helped with tractor work and hay making.  She said over the years the profitability of the farm improved, and her father began to share a farm worker with other locals.  In 1981 she entered the intake at Dunedin Teachers College and completed her qualifications.  Lambing was scheduled to fit in with her term holidays, and she was always at home during the busiest periods.  In 1984 she was posted to Auckland, but during those years she still came home and helped with the busiest part of lambing.  In 1992 she was offered a part time youth worker’s position in Kaitangata near the family farm, and she returned to South Otago.  Throughout that year she helped with weekend work, and worked on the farm during lambing.  For 18 months after the lease expired on a house in Kaitangata she lived on the farm, during which time her mother was working in Invercargill, and coming home for weekends.  In 1994 and 1995 she helped with the lambing, fitting it around her other commitments, ultimately buying a house in Kaitangata.  She said she had a close supportive relationship with her father, the farm being a shared interest.  She said they spent many hours talking over the farm’s hopes and dreams, and the father always said “This farm is for you three children.  The Trust is for you kids.”

Ruth is unmarried and without a partner.  She owns her own home at Kaitangata and cares for two teenage foster children.  She has net assets of $68,400 and a gross income of $51,036 plus a CYPS boarding allowance for the foster children.

[34]     We add that Ruth, a schoolteacher, enjoyed a close and supportive relationship with her father. She will not misunderstand our observation that the evidence does not support the Judge’s observation that she was Mr Wylie’s favourite; he was plainly a big hearted man who loved each of his children and was above favouritism, even if he shared the attitude of many farmers of his generation, no longer accepted by the law, that the wider family interests may be served by down-playing the moral claims of daughters in favour of those of a son.

[35]     Mary and her husband own an electrical business and their own home at Balclutha and have five children aged between 11 and 19.  The Judge’s account was

[13]     Mary took a different route, undertaking an electrical apprenticeship which she successfully completed.  She is now married, with 5 children aged from 18 to 10 years.  She and her husband own their own electrical business, which has faced significant difficulties over the years.  Indeed, her brother Moss has assisted her by way of a loan of $60,000-00.  She, like other family members, except Moss, was bewildered by the Will, and she expresses concerns about Moss’s ability to run the farm.  Her current financial situation is far from sound.  Money is owed to her brother-in-law, and there is still $45,000-00 owing to Moss, and approximately $70,000-00 to Bill’s estate and Maureen. Although they have kept afloat, they are technically insolvent.  Her present house as a rateable value of $79,000-00, on which there is a mortgage, and the accounts of the business make it plain that her financial situation is not strong.

We add that Mary also was involved in both farm work and household duties while at school and then for a further four years until she left home.

[36]     While the law now treats exactly alike male and female claimants under the Family Protection Act who are similarly placed, Williams v Aucutt confirms that the Court has no authority to rewrite a will to achieve parity.  It may intervene only if, and to the extent, there is breach of the moral and ethical duty that a just and wise testator can be held to owe them in all the circumstances of the case.  Beyond that the Court has no jurisdiction to interfere: the will of the testator must be upheld even if the members of the Court were to consider that an even distribution would be more in keeping with today’s values.

[37]     In appraising what award should be made to Ruth and to Mary, Moss’s position must be taken into account in terms both of Mr Wylie’s expressed intention and of his own moral claims.   The Judge found that

[14]     Moss is the youngest child.  He is now married with two children, and lives at Waianawa, approximately 25km from Invercargill.  He attended a boarding school at Gore between 1974 and 1976, and completed schooling in 1977 at South Otago High School.  His father arranged employment for him at the freezing works.  Later he gained a farm management certificate, following a three years correspondence course.  During 1978 he worked on “Salt Bush” and the Haggart and Beck property, doing fencing, tractor work, lambing and shearing.  At the end of 1978 his father persuaded him to get work at the freezing works again, as there was not enough work for both on the farm.  He obtained a job at Lorneville, and completed 12 seasons there.  He also carried out shearing and other casual work, saving enough money to enable him to purchase his own farm in 1986.

[38]     We add that, while the terms of the will and the unresolved litigation have presented difficulties, Moss has been generous in assisting both his mother with a loan to enable her to buy a car and in incurring debt himself to allow him to make the loan to Mary.  Moss lives in Invercargill with his wife and children aged eight and three.  He owns his own home and a number of retail properties in Invercargill.   His assets comprise

Home  $136,000

Rental property          $415,000

Other  $92,000

Total  $643,000

Less bank loan           $68,000

$575,000

In terms of the will he is to receive in addition Mr Wylie’s half share in Salt Bush and in stock and plant which are together valued at $822,842.  He was employed until 15 February 2002 when he became redundant. His income while unemployed is $35,000 per annum before tax; he has the capacity to earn but has preferred not to commit himself while awaiting the results of this litigation.  While he is not required to justify the provision for him contained in the will, his overall position is material to claims that would tend to impact on that provision.

[39]     We are satisfied that a wise and just testator would have made significantly greater provision for both Ruth and Mary than the $56,000 more or less that each is to receive by way of residue.  What the Judge described as Ruth’s “ongoing contribution to the farm” is notable.  She was entitled to recognition of the shared aspiration that she, as well as her brother and sister, should benefit from the farm.  We are of the view that, treated as a total figure, Mr Belcher’s $200,000 figure is reasonable and that can be achieved by adding to the residuary bequest, determined following correction of the estate accounts, such further sum as is required to achieve that figure.  A wise and just testator would also have regard both to Mary’s contributions to the family and to the farm and to her needs.  We consider that he would ensure that her debts of $115,000 were paid and that she would receive a reasonable cash sum in addition.  While her contributions to the farm were less than those of Ruth, her needs are greater and we consider that a similar order as in Ruth’s case is appropriate.

[40]     In reaching this conclusion we recognise that the balance payable to Ruth and to Mary over and above the residuary bequest of each must come out of Moss’s share.

Costs

[41]     We have considered Mr Moss Wylie’s memorandum as to the costs and disbursements he has incurred.     Mrs Wylie is entitled to payment out of the estate of such of her costs as administrator as resulted from the claims by her daughters.  That aside there is no reason in principle to depart from the Judge’s order that each party bear his or her own costs in the High Court.  A similar order is made in respect of the appeal.

Order

[42]     The appeal is allowed.  The will is to take effect according to its tenor, except that the interest of Moss William Wylie is to stand charged with such payment to each of his sisters Ruth Kerei Wylie and Edith Mary Johnstone as when added to her residuary bequest will amount to $200,000.

Solicitors:
Lucas and Lucas, Dunedin