YOZIN v NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED [2018] NZHC 1390

YOZIN v NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED [2018] NZHC 1390 [12 June 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2016-404-1502[2018] NZHC 1390UNDER s 3 Law Reform (Testamentary Promises)Act 1949 and s 14(6B) Trustee Act 1956IN THE MATTER of the Estate of M Babic YozinBETWEEN ROSALIE MAY YOZIN AND HELENJEAN MENZIESPlaintiffsAND NEW ZEALAND GUARDIAN TRUSTCOMPANY LIMITEDDefendantHearing: 30 - 31 October, 1, 2 and 7 November 2017Appearances: S A Grant and J A Zwi for PlaintiffsS J McCarthy for M B YozinS Telford for N H Yozin-SmithJudgment: 12 June 2018JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 12 June 2018 at 4.30 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Vicki Ammundsen Trust Law, AucklandPatrick Molloy, AucklandMorgan Coakle, AucklandCounsel: S A Grant, AucklandJ A Zwi, AucklandS J McCarthy, AucklandBackground[1] The plaintiffs, Rosalie Yozin and Helen Yozin, and their siblings, NormaYozin-Smith and Maurice Yozin (together the "beneficiaries" and individually by theirChristian names), are each entitled to a 25 per cent share of the residue of the estate oftheir father, Milan Babic Yozin ("estate" and "Mr Yozin"). Mr Yozin died inApril 1975.[2] The defendant ("NZGT") is the executor and trustee of the estate. It abides thedecision of the Court.[3] The estate's sole asset is a four-hectare block of land in Swanson, WestAuckland ("land").[4] Rosalie wishes to have transferred to her what are referred to as Lots 1 and 2("Lots 1 and 2"), and she and Helen together wish to have what is referred to as partLot 4 ("part Lot 4"), in part satisfaction of their 25 per cent entitlements. What wasthe family home is situated on Lot 2 with an adjoining garden on Lot 1. A shed and"winery building" ("shed") are situated on part Lot 4.[5] Although Norma and Maurice have previously expressed a willingness toaccommodate the plaintiffs' wishes, no agreement has been reached on the value thatshould be attributed to the Lots. Given that, Norma and Maurice submit that NZGTmust sell the land, distribute the net proceeds of sale and wind up the estate.Pleadings[6] The plaintiffs' three alternative causes of action are for provision under s 3(1)Law Reform (Testamentary Promises) Act 1949 ("TPA"); for rectification of the will;and for an order for partition of the land and a direction to NZGT to transfer the Lotsin issue to the plaintiffs.1 This third cause of action was the subject of an unopposedaddition to the statement of claim at the end of the trial.1 Trustee Act 1956, s 14(6B).[7] For the reasons set out below, there are fundamental difficulties with theplaintiffs' claim and for that reason it is unnecessary for me to address the affirmativedefences that were pleaded or every point made in the evidence in the proceeding,much of which I regret to say was irrelevant or submission.Background[8] Mr Yozin was born in Yugoslavia in 1910, immigrated to New Zealand in 1926,and purchased the land in 1937. Mr and Mrs Yozin married in 1945, when he was 35and she was 20 or 21. No doubt Mr Yozin had already commenced planting fruit treeson the land and he and Mrs Yozin continued that enterprise. They operated a marketgarden and, later, having planted vines, a wine making business.[9] Helen was born in 1946, Norma in 1948, Rosalie in 1957 and Maurice in 1953.[10] There is no doubt that Mr and Mrs Yozin worked extremely hard in theseenterprises, and that they were assisted by their children when they were old enoughto do so.[11] Mr Yozin made his will on 6 May 1954 ("will"). The executors wereMrs Yozin and family friends, Mr William Weaver and Mr Dan Urlich. Mr Yozinmade codicils in 1957 and 1966 changing his executors.[12] Mr Yozin was diagnosed with lung cancer in 1972. He died in 1975, aged 65.Probate of the will and codicils was granted in July 1975 to Mrs Yozin, Mr Weavers(who died in 1986) and Mr Peter Babich.[13] Mrs Yozin was 51 at the date of Mr Yozin's death and the beneficiaries intheir 20s. Helen was married with two children, living in Balmoral and she and herhusband had a clothing business. Norma, Rosalie and Maurice were living at home.Norma was working as a legal secretary; Rosalie was also a secretary and training tobecome a legal executive; and Maurice, who had been training to become an engineer,had left his cadetship in 1974 to assist his father. Maurice took over the managementof the property and the business after Mr Yozin's death.[14] Mrs Yozin did not remarry. She remained in the family home until her deathon 12 October 2014, when she was aged 90 or thereabouts.[15] Helen has been afflicted with several serious illnesses in recent years and isretired. Norma has lived in England since 1985 if not earlier. She too has a child orchildren and is recently widowed. Maurice is married with children. Excluding ashort period in 1985/1986, Rosalie remained living in the family home with Mrs Yozin.Rosalie ceased full time employment in 1990, assumed the management of the landand looked after Mrs Yozin when she became unwell several years before her death.Rosalie continues to live in the house, rent free, although has paid the rates and otheroutgoings.Land[16] The land is a large, rectangular shaped block in Swanson. It comprises Lots 1to 20 (but excluding Lot 3) DP 7651, and is 4.0149 ha. Lots 1, 2 and part Lot 4comprise approximately 3,475 m2. The balance of the land excluding those lots is36,674 m2.[17] Each Lot has direct access either to Swanson Road or O'Neills Road. Thebalance of the land at the rear of the site is in Lots 4 and 9 which are each more than1 ha.[18] Rosalie and Maurice purchased Lot 3 from the estate for $7,600 in late 1975,early 1976 to enable the estate to pay death duties. Rosalie relies on this acquisitionas evidencing the beneficiaries' acceptance of a wish by Mr Yozin that the land remainin the family's ownership. Rosalie also contends that the sale was at less than marketvalue and established a "precedent" that land would be exchanged within the familyat a discount. Both contentions are disputed. Regardless, the circumstances relatingto the sale and purchase of Lot 3 are of little if any relevance to the issues before me.[19] Rosalie has obtained a "s 226 certificate" to subdivide Lots 1 and 2 and, as Iunderstand it, has commenced the process of applying to subdivide part Lot 4.2 The2 Resource Management Act 1991, s 226.Council's response to Rosalie's enquiries suggest that, in principle, the Council has noobjection to a subdivision of part Lot 4 from the remainder. However, this lattersubdivision would deprive the remainder of Lot 4 from its direct access to SwansonRoad and so some alternative access arrangements would have to be made.[20] Lots 1 to 3, part Lot 4 and an adjoining 3 or 4-metre-wide strip of Lot 5 aresubject to a "Heritage B" designation. The Council or its predecessor initiallyproposed to designate a much larger area but, as a result of submissions by Rosalie,the final designation covers only 45 per cent of the area originally proposed.[21] The home on Lot 2 and the shed are the only buildings on the land. Variousissues may arise in respect of the shed, including the possibility of "contamination"and earthquake strengthening.[22] The valuers were agreed that Lots 1 and 2 are readily saleable, and part Lot 4less so. Lot 1 might be subdivided, subject to Council consent given the heritagedesignation.Proceedings[23] Differences arose between the parties after Mrs Yozin's death as to whether allthe land should be sold or whether the plaintiffs might acquire the Lots they wished.The plaintiffs came to believe that Mr Babich, the sole surviving executor and trusteeof the will, was not impartial and that he favoured Maurice who wished to sellpromptly.[24] In mid-2016 the plaintiffs commenced this proceeding to appoint NZGT inplace of Mr Babich, and seeking other directions including as to "the method ofrealisation of the [land]". Ultimately, it was agreed that Mr Babich would resign,without any acknowledgement that there were grounds for removal. There is an issueas to Mr Babich's legal costs which I determine at the end of the judgment.[25] In August 2017, the plaintiffs amended their pleading to seek relief under s 3TPA and rectification of the will. Then, towards the end of the trial, the plaintiffs madethe amendment referred to in [7] above.[26] The relief sought in each cause of action is as follows:3A. Orders that:(a) Lots 1 and 2 be transferred to Rosalie in one title;(b) Part Lot 4 be transferred to [the plaintiffs];(c) [The plaintiffs'] shares in the estate be modified to accountfor the receipt of the above land as part of their inheritance inthe following way;(iii) The balance of the land is to be sold as one parcel;(iv) The value of the land transferred to [the plaintiffs] isto be assessed by applying the same pro rata value persquare metre as is ascertainable from the price paidby the purchaser of the balance of the land less anallowance for the heritage component andcontamination.Construction of the will[27] Up until the end of the trial, the parties proceeded on the basis that the willrequired NZGT to sell the land and that the beneficiaries entitlement was to the netproceeds of sale. However, Mrs Grant, counsel for the plaintiffs (and instructed whenthe proceedings were well advanced), submitted that in fact the terms of the willrequire NZGT to vest the land itself in the beneficiaries. If that is correct, the first twocauses of action at least would fall away.[28] I shall put the terms of the will in a schedule to this judgment but in summaryMr Yozin:(a) gifted a sum of money and his household effects to Mrs Yozin – clause3;(b) devised and bequeathed his real and personal property on trust to hisexecutors to "sell, call in and convert" the same into money – clause 4;3 Second Amended Statement of Claim dated 8 November 2017 at 9.(c) directed his executors to pay his testamentary debts etc from theproceeds of sale and to invest the balance in authorised investments –clause 5;(d) thereafter directed his trustees to hold the "trust fund", defined as theinvestments referred to in clause 5, "and such portion of the estate asshould for the time being be unconverted". The trustees were to paythe net annual income therefrom to Mrs Yozin (whilst she remainedMr Yozin's widow, that is until she remarried or died) and wereempowered to apply the capital of the trust fund for certain purposesincluding for Mrs Yozin's maintenance and support and, if sherequested, the purchase of a suitable home – clause 6;(e) directed that, on Mrs Yozin's remarriage or death, the trustees were tostand possessed of the "corpus of the said trust fund or the balancethereof and/or the investments for the time being representing thesame for such of my children as shall survive me and attain the age of[21] and if more than one in equal shares" – clause 6;(f) authorised his trustees in their discretion to, amongst other things,postpone the sale, calling in and conversion of any of Mr Yozin's realproperty or any part or share thereof for as long as they in theiruncontrolled discretion thought fit – clause 7.[29] Mrs Grant submitted that the "corpus of the trust fund" of which NZGT "standspossessed" is the land and it is that which NZGT must transfer to the beneficiaries inequal shares. Mrs Grant did not refer me to any authority on the point but rathersubmitted that this conclusion follows on the construction of the will.[30] It is correct that the land has not yet been sold and converted into money.Mrs Yozin wished to remain living in the family home and the beneficiaries did notobject to postponement of a sale whilst she was alive.[31] However, there is nothing in the terms of the will to suggest that the directionto sell the land expired on Mrs Yozin's death or remarriage, which might have occurredat any time. Indeed, on Mrs Grant's argument, whether the beneficiaries were entitledto land or money would depend on the state of affairs prevailing at Mrs Yozin's death(and she might have predeceased Mr Yozin) or remarriage.[32] For the sake of completeness, The Commissioner of Stamps v Jillett and Sengv Tuang are two cases concerning the construction of similar provisions to those in thewill.4 These authorities are of some peripheral assistance but ultimately the issue isone of construction.First cause of action – s 3 Law Reform (Testamentary Promises) Act 1949[33] The plaintiffs' claim under s 3(1) is unusual in that they do not dispute theextent of the provision Mr Yozin made for them. Rather, they are asking the Court tosubstitute an interest in land, ie the Lots in issue, in lieu of part of their entitlement.[34] The plaintiffs' claim concerns events that occurred prior to Mr Yozin's death,and so more than 40 years ago. Claims brought so late face the difficulty that the sheerpassage of time inevitably affects the quality and quantity of the evidence available.In this case, I am not satisfied that the plaintiffs' evidence can be relied on as accurate,because of that lapse of time.Leave[35] The plaintiffs require leave to bring this claim. The claim could only bebrought as of right within 12 months of the grant of probate – again, more than40 years ago. In fact, Mr McCarthy, counsel for Maurice, submitted that I had nojurisdiction to grant leave because the "estate had been finally administered". Anestate is so administered at the point in time in which the executor has completedadministration of the estate and becomes a trustee.54 The Commissioner of Stamps v Jillett (1905) 24 NZLR 873 (CA); and Seng v Tuang [2012] SGCA41, [2012] 4 SLR 339. See also JM Lightwood "Trusts for Sale" (1927) 3 CLJ 59.5 Lilley v Public Trustee [1981] 1 NZLR 41 (PC); and Law Reform (Testamentary Promises) Act1949, s 6.[36] Final distribution has not occurred in this case. As Mrs Grant submitted, thereis no evidence that the legacy due to Mrs Yozin under clause 3 of the will has beenpaid; the Council is owed an as yet undetermined sum for rates (accrued prior toMrs Yozin's death); and, on my view of the will, NZGT has still to sell the land.6Accordingly, it would be open to me to grant leave but I decline to do so as the claimis bound to fail.Statutory provision[37] Turning now to the claim itself, the relevant parts of s 3 provide:3 Estate of deceased person liable to remunerate persons for workdone under promise of testamentary provision(1) Where in the administration of the estate of any deceased person aclaim is made against the estate founded upon the rendering ofservices to or the performance of work for the deceased in his lifetime,and the claimant proves an express or implied promise by thedeceased to reward him for the services or work by making sometestamentary provision for the claimant, whether or not the provisionwas to be of a specified amount or was to relate to specified real orpersonal property, then, subject to the provisions of this Act, the claimshall, to the extent to which the deceased has failed to make thattestamentary provisionbe enforceable against the personalrepresentatives of the deceased in the same manner and to the sameextent as if the promise of the deceased were a promise for paymentby the deceased in his lifetime of such amount as may be reasonable,having regard to all the circumstances of the case, including inparticular the circumstances in which the promise was made and theservices were rendered or the work was performed, the value of theservices or work, the value of the testamentary provision promised,the amount of the estate, and the nature and amounts of the claims ofother persons in respect of the estate, whether as creditors,beneficiaries, wife, husband, civil union partner, children, next-of-kin,or otherwise....(3) Where the promise relates to any real or personal property whichforms part of the estate of the deceased on his death, the court may inits discretion, instead of awarding to the claimant a reasonable sum asaforesaid,—(a) make an order vesting the property in the claimant or directingany person to transfer or assign the property to him; or(b) make an order vesting any part of the property in the claimantor directing any person to transfer or assign any part of the6 Report on the Administration of the Estate of Milan Babic Yozin dated 19 October 2017.property to him, and awarding to the claimant such amount (ifany) as in its opinion is reasonable in the circumstances.Services or work[38] To succeed under s 3(1), a claimant must first prove that he or she renderedservices or performed work for the deceased during the deceased's lifetime. The"services" or "work" relied upon must go beyond the normal expectations of familylife. As was said in Re Welch, "some straining of the scope of the Act is required tobring within the concept of services the natural incidents and consequences of lifewithin a close family group".7 Similarly, in Chapman v HP, the Court said the focusmust be on what was expected in the particular family.8[39] In this case, I accept that the beneficiaries were required to assist their parentspicking, grading, packing and selling fruit. There is no evidence as to the hours thatmight have been worked, but I am willing to proceed on the basis that at particulartimes of the year many hours may have been required.[40] That, however, is tempered by two considerations. First, Norma's evidencewas that the beneficiaries did no more than was expected of them in the context oftheir family life and, indeed, in many families living in the district undertaking similarenterprises. The Yozin family was certainly not alone in conducting market gardenand grape growing enterprises in West Auckland. I am not persuaded that what theplaintiffs were required to do went beyond what was expected in their family.[41] Secondly, any services or work that the plaintiffs rendered or performed werenecessarily limited given their schooling, tertiary education/training thereafter, theirsubsequent employment, and their relatively young age at the date of Mr Yozin's death.Having regard to those matters, any services rendered or work performed that didexceed what was fairly expected within the family must have been modest.7 Re Welch [1990] 3 NZLR 1 (PC) at 7.8 Chapman v HP HC Wellington CIV-2007-480-1372, 2 July 2009 at [287].Promise to reward for services or work[42] Next, to obtain the particular relief they seek, the plaintiffs would be requiredto prove that Mr Yozin promised to reward them for those services or work by makingtestamentary provision relating to "real property".9[43] I am not satisfied that Mr Yozin made any promise to reward the plaintiffs bymaking testamentary provision, let alone provision relating to real property. Myreasons are these.[44] Each of the plaintiffs swore three affidavits. Their first affidavits wereprincipally directed to securing the appointment of NZGT in place of Mr Babich. Thatsaid, each gave evidence in their first and their second affidavits that their fatherintended and said to them that they would be able to have an interest in the land as partof their inheritance if they wished. However, although the plaintiffs swore their secondaffidavits in support of their claim under the TPA, neither gave evidence that Mr Yozinpromised to make testamentary provision as a reward for services or work. It was onlyin their third affidavits, filed shortly before trial, that the plaintiffs gave evidence ofany such promise. Ms Telford, counsel for Norma, submitted that I could infer fromthe lateness of this evidence that it was given in recognition of what would be requiredto prove the claim under s 3(1) and that I could not rely on it. I accept that submission.If there were a clear recollection of such a promise, I am satisfied it would have beenreferred to at a much earlier stage in the proceedings.[45] I also take into account the evidence of Norma and Maurice. Each stated thatthey had no recollection of Mr Yozin making any promise to reward for services orwork, whether generally or in relation to the land, and they certainly had norecollection of any such promise being made to them. I place particular weight onNorma's evidence. Norma impressed me as being fair and careful in the way she gaveher evidence. Norma was also sympathetic to Rosalie and Helen's wish to retain theLots they seek subject to their doing so on terms which are fair to all concerned. I amsatisfied that if Norma recalled a promise to reward, generally or in relation to theland, she would have said so.9 Law Reform (Testamentary Promises) Act 1949, s 3(3).[46] To conclude on this point, I accept that Mr Yozin may well have told hischildren to "stop complaining" when he required them to work, because "one day itwill all be yours" or "you are working for yourselves". Rosalie in particular gaveevidence to this effect. As Ms Telford submitted, such a statement has the hallmarksof a father who intends that his children will inherit his estate in due course, as theyhave done. However, such a statement does not constitute a promise to maketestamentary provision as a reward for services or work, as s 3(1) TPA requires. I amnot satisfied that Mr Yozin made any such promise.Reasonable[47] Lastly, a claim under s 3(1) is enforceable only to the extent of such amount asis "reasonable" having regard to, amongst other things, the value of the servicesrendered or the work performed. In ascertaining what is a reasonable amount, theCourt is required to "net off" benefits received, so that provision is equivalent to theshortfall, if any, between the value of services or work on the one hand and theprovision made in fact, on the other.10[48] In this case, an award of any of Lots 1 or 2 or part Lot 4 would vastly exceedthe value of the services rendered or work performed, without making any deductionfor benefits received. I would not have jurisdiction under s 3(1) to make an awardwhich exceeds what is reasonable, even if the plaintiffs had satisfied the requirementsof s 3(1), which they have not.[49] I decline to grant leave to the plaintiffs to bring their claim under s 3(1) TPAand, if I am wrong in that, I dismiss the claim.Second cause of action – Rectification[50] The plaintiffs allege that Mr Yozin did not know or approve the terms of thewill "relating to the disposition of the [land]".11 They also allege that the will does notreflect Mr Yozin's intentions as it does not make express provision for the plaintiffs"to receive part of the [land] of their choosing".10 Powell v Public Trustee [2003] 1 NZLR 381 (CA).11 Second Amended Statement of Claim, above n 3, at [28].[51] This part of the plaintiffs' case proceeds on the basis that Mr Yozin intendedthe land would stay in the family. They say that Mr Yozin was a "traditionalYugoslavian" who would not intentionally have divested himself or his family of land.The plaintiffs also rely on statements that Mr Yozin is alleged to have made toMrs Yozin and to them, to the effect that Mrs Yozin and after her death the residuarybeneficiaries could determine what would happen to the land.[52] The plaintiffs accept that Mr Yozin had sufficient English to convey hisinstructions to his solicitor, Mr Massey, but they say he was not capable of reading hiswill or approving its legal effect.[53] The gist of the plaintiffs' case is that, at the very least, any of the beneficiarieswho wished to take their inheritance in specie would be able to do so and that thosewords "in specie" have been omitted from the closing words of clause 6 of the will inerror. The plaintiffs seek rectification to correct that omission.[54] In support of their case, the plaintiffs referred me to Re Jensen, in whichFisher J stated that the Court had power to rectify a will if it were necessary to do soto give effect to the testator's intentions. 12Discussion[55] I am satisfied that the will as I have construed it reflected Mr Yozin'sinstructions to his solicitors. I do not consider there was any error as the plaintiffsallege.[56] As the plaintiffs have accepted, Mr Yozin had sufficient English tocommunicate his instructions to his solicitors. I accept that he may not haveunderstood the niceties of testamentary language. He would not be alone in that. ButI am confident that if Mr Yozin intended the land to be retained he would havecommunicated the same to his solicitors and they would have drafted a willconsistently with those instructions. Mr Yozin plainly gave his solicitors contraryinstructions because by his will he directed his executors to sell his real property, invest12 Re Jensen [1992] 2 NZLR 506 (HC) at 512.the proceeds, pay the income to Mrs Yozin, gave them power to advance capital, tobuy a suitable house etc. These directions are inconsistent with the proposed additionof the words "in specie" to clause 6.[57] Mr Yozin was an intelligent man. He and Mrs Yozin subscribed to two dailynewspapers, the New Zealand Herald and the Auckland Star. Mr and Mrs Yozin werefounding members of the Swanson Bowling Club. Mr Yozin was a member of theSwanson Primary School committee, was involved in the New Zealand FruitgrowersFederation and the Viticultural Association, and he held a licence to sell wine.Mr Yozin could have only participated in these activities by communicating inEnglish.[58] Three other matters are relevant.[59] The first is that the will was prepared and witnessed by Mr Yozin's solicitor,Mr Frank Massey, of Earl Kent Massey Palmer & Haggitt. Mr Massey also appearsto have witnessed each codicil. It is inevitable that, when taking instructions for thepreparation of the will, Mr Massey would have made sure of Mr Yozin's testamentarywishes. It also is inevitable that there would have been a discussion between the twowhen Mr Yozin gave instructions for the preparation of his codicils. On thoseoccasions, Mr Massey would have confirmed that Mr Yozin continued to be satisfiedwith the terms of his will. And, of course, Mr Yozin confirmed in those codicils thathe was so satisfied.[60] The second point is that the instructions Mr Yozin gave to his executors andtrustees, as referred to in [56] are quite sensible given the circumstances that prevailedwithin the family up to Mr Yozin's death.[61] The third point is that Rosalie and Norma each confirmed in evidence that, onbeing confronted with his diagnosis, Mr Yozin confirmed to Mrs Yozin that the willhe had made almost 20 years earlier still reflected his wishes.[62] In those circumstances, the only conclusion to be drawn is that the will didexpress Mr Yozin's intentions.[63] I dismiss this second cause of action.Third cause of action – s 14(6B) Trustee Act 1956[64] In their third cause of action, the plaintiffs seek an order for partition of theland pursuant to s 14(6B) Trustee Act and orders vesting the Lots in issue in theplaintiffs. Section s 14(6B) gives the Court discretion to order a partition of real estateof a deceased if satisfied it would be "advantageous to the parties interested therein".It provides:14 Powers to sell, exchange, partition, postpone, lease, purchase, etc(6B) Where upon inquiry the court is satisfied that a partition of the realestate of a deceased person would be advantageous to the partiesinterested therein, the court may order a partition or may appoint 1 ormore arbitrators to effect a partition, and to exercise in regard thereto,under its directions and control, such powers as it thinks fit; and if thereport and final award of the arbitrator are approved by the court, thetrustee shall, by conveyance or transfer, give effect to the sameaccordingly.[65] The first point to address is whether the beneficiaries are "interested" in theland. I do not consider they are. The effect of clause 6 of the will is that thebeneficiaries are interested in the net proceeds of the sale of the land. In my view,s 14(6B) is intended to allow the Court to order a partition of land gifted in specie totwo or more beneficiaries in shares.[66] If I am wrong in that, the grounds on which the plaintiffs submit partitionwould be advantageous are that partition would have the effect of resolving alldisputes; in the absence of orders, NZGT might continue to postpone any sale of theland by the powers vested in it under the will; and the highest price for the land willbe achieved if Lots 1, 2 and part Lot 4 are isolated as proposed and transferred to theplaintiffs.[67] The only one of those grounds that counts with me in this case is the contentionthat the highest price for the land would be achieved if the Lots were isolated asproposed.[68] This has not been proved. The plaintiffs and each of Maurice and Norma calledevidence from expert valuers in the event it became necessary to consider the relief tobe granted to the plaintiffs.[69] The valuers agreed that the highest and best use of the land is a residentialsubdivision and that a developer, being the likely purchaser of the land, might or mightnot wish to acquire the Lots sought by the plaintiffs. Matters to be taken into accountwould be the disadvantage of the heritage designation and the issues which arise inrelation to the shed. On the other hand, a developer might find it easier to obtainresource consent for whatever subdivision and/or development is proposed if theyowned all the land.[70] In any event, the beneficiaries and NZGT do not require an order from theCourt to achieve separation. It remains open to the beneficiaries to agree to sell theLots to the plaintiffs. Apart from that, NZGT itself may decide that the best price islikely to be achieved by offering one or other Lot or Lots for sale independently of thebalance of the land. NZGT might seek tenders on different bases. The method of saleis for NZGT to determine absent agreement of the beneficiaries. I do not consider anyorder of the Court is required to assist in securing the best price.[71] For these reasons, I dismiss this third cause of action also.Price for Lots 1, 2 and part Lot 4[72] In case it assists the parties, had I found for the plaintiffs, I would not haveordered that they acquire Lots 1, 2 and part Lot 4 on the basis they proposed, becauseit is unfair to the other beneficiaries.[73] The plaintiffs' proposal was that the price should be calculated by multiplyingthe area of these Lots by the price per m2 achieved for the balance of the land and thendeducting sums for the effect of the heritage designation, possible contamination andother issues arising on part Lot 4, the saving in real estate commission and the costsof subdivision.[74] Maurice and Norma opposed this proposal, and submitted that the plaintiffswould have to acquire the Lots at market value and that the plaintiffs' proposal fellwell short of that. Both of those submissions are correct.[75] All the valuers, the plaintiffs' included, agreed that Lots 1 and 2 and part Lot 4will attract a substantially higher price per m2 because of the smaller area, the accessto Swanson Road and because Lot 1 has subdivision potential, subject to the effect ofthe heritage designation.[76] The question of the deductions was less contentious on the evidence but againall the valuers accepted these too were inevitably a matter of conjecture.[77] For the sake of completeness, I record that I did enquire of the parties whethermatters might be resolved by allocating equivalent Lots to Maurice and Norma but allconcerned preferred to await this judgment.Mr Babich's costs[78] Mr Babich was required to consult solicitors, both in the day to day conduct ofthe estate and because of the serious differences between the beneficiaries. Mr Babichwas not able to charge for the many hours he must have spent on this matter but he didincur legal fees of $99,884.71 including GST.13[79] The beneficiaries have agreed that the estate will pay those costs and I amrequired to determine whether any beneficiary should bear more than a 25 per centshare.[80] The plaintiffs seek orders that Maurice should pay 50 per cent of the costs tothe extent they were incurred before 10 December 2016, with Rosalie, Helen andNorma bearing the other 50 per cent, and that thereafter Maurice should pay 100 percent of Mr Babich's costs.13 Report on the Administration of the Estate of Milan Babic Yozin, above n 6.[81] Norma submits that the estate should bear the costs to the point in time at whichthe plaintiffs commenced the proceedings, and that the plaintiffs should bearMr Babich's legal costs thereafter, on the grounds that the plaintiffs' claims againstMr Babich were never substantiated.[82] Maurice considers the estate should bear all of Mr Babich's legal costs.[83] I am satisfied that each beneficiary should bear an equal proportion of the legalcosts, which must be paid as soon as the estate has the funds to do so. I do not proposeto enter into the rights and wrongs of the beneficiaries' and their then legal advisers'conduct prior to commencement of the proceedings. There were failings on all sides.More importantly, the sum in dispute is trivial given the value of the estate.Result[84] I dismiss the plaintiffs' claims.[85] Costs and disbursements up to Mr Babich's resignation are to lie where theyfall. The estate is to bear any costs and disbursements Mr Babich incurred in theproceeding that fall outside the $99,884.71 above.[86] For the period after Mr Babich's resignation, in accordance with the usualrules, the plaintiffs as the unsuccessful parties are to pay the defendants' costs andreasonable disbursements. Costs are to be on a 2B basis unless some very compellingsubmission to the contrary is made forthwith. Any disputes as to quantum are to bedetermined by the Registrar.Peters JADDENDUMRELEVANT CLAUSES OF THE WILL3. I GIVE AND BEQUEATH unto my said wife ZORKA MILIKA YOZINabsolutely:(a) The sum of £1000(b) All the household furniture silver plate linen glass china picturesand other articles of household use or ornament of which I shall diepossessed.4. SUBJECT thereto I GIVE DEVISE AND BEQUEATH all the property real andpersonal whatsoever and wheresoever situate of which I have power to dispose bythis my will unto my Trustees UPON TRUST subject as hereinafter provided to selland convert into money my real property and to sell call in and convert into moneymy personal property with power to effect any such sale either by public auction orprivate contract either together or in parcels either at one time or from time to timeand subject to all such conditions and terms as to my Trustees seem expedient and tomake execute and do all such conveyance assurances writings and things as may benecessary for effectuating any such sale.5. I DIRECT my Trustees to stand possessed of the proceeds of such sale andconversion after payment thereout of my just debts funeral graveyard andtestamentary expenses and the costs and expenses of such sale and conversion andall estate and succession duties payable in connection with my dutiable estate UPONTRUST to invest the same in any of the modes of investment authorised by the lawin force for the time being in New Zealand for the investment of trust moneys.6. I DIRECT my Trustees to stand possessed of the investments for the time beingrepresenting my estate and of such portion of my estate as shall for the time being beunconverted (hereinafter collectively referred to as and included in the term "the saidtrust fund") UPON TRUST to pay the net annual income arising therefrom to mysaid wife during her life whilst she remains my widow she thereout maintaining andeducating my infant children with power to my Trustees to apply to and use fromtime to time at their discretion such portion of the capital of the said trust fund asmay be necessary for the maintenance and support of my said wife and infantchildren in reasonable comfort. AND I ALSO EMPOWER my Trustees at therequest in writing of my said wife to purchase from out of the said trust fund a homesuitable for her requirements and to hold the same UPON TRUST to permit andallow my said wife and children to personally use occupy and enjoy the same duringher life whilst she remains my widow free of rent and without impeachment of wastemy Trustees paying all rates taxes insurance premiums and other charges and outgoings and keeping the said property in good order and repair AND upon the deathor re-marriage of my said wife whichever event shall first occur UPON TRUST asto the corpus of the said Trust fund or the balance therefore as the case may be and/orthe investments for the time being representing the same for such of my children asshall survive me and attain the age of twenty one years and if more than one in equalshares.7. I AUTHORISE my Trustees to do all or any of the following acts in theirdiscretion:(a) To postpone the sale calling in and conversion of my real andpersonal property or any part or share thereof from time totime for so long as my Trustees shall in their uncontrolleddiscretion think fit.(b) To apply the whole or such part or parts as my Trustees shall thinkfit of the income and to raise and apply such part or parts notexceeding one half as my Trustees shall think fit of the capital of theshare or property to which any minor may be actually presumptivelyor contingently entitled hereunder for the benefit maintenance oreducation of the minor or at their discretion to pay the same to anyperson acting with or without authority as guardian of the minor thereceipt of such guardian being a sufficient discharge to my Trustees.(c) To let or lease all or any portion of my estate for such period andupon and subject to such terms and conditions as they shall in theirabsolute discretion think fit and to re-enter and determine leases andtenancies.(d) To carry on farming operations of any nature upon any propertywhich I may own and to employ in and about the conduct andcarrying on of such operations all stock and capital that may be usedand employed therein by me or that may in the opinion of mytrustees be necessary for the purpose with power also to my Trusteesto delegate all or any of the powers of management and other powersrelating to the carrying on of such operations to my said wife or anyother person or persons whom they may think fit and so that myTrustees shall be free from all responsibility and shall beindemnified in respect of any loss arising in relation to themanagement and carrying on of the said farming operations.