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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NZCA 99
Decision Date: 4 June 2003

CaseChat Overview and Summary

Moss Wylie, the son of the late William James Wylie, appeals against judgments 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, 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, the second respondents. The central issues for determination were whether the trial Judge correctly identified a breach of moral duty and if so, the appropriate remedy. The Court found that the Judge had misapprehended the significance of the appointment made under the Trust, which had effectively provided for Mrs Wylie’s continued residence in the matrimonial home. The Court held that the primary gift to Moss of the half-interest in Salt Bush and the farm’s stock and plant should be restored. The Court also determined that there was a breach of moral duty owed to the daughters and ordered that Moss’s share be charged with a payment to each of his sisters amounting to $200,000 when added to her residuary bequest. The appeal is allowed with the will to take effect according to its tenor, except for the specified charge on Moss’s share.

Orders