Fitzgerald v Mills - [2018] NZHC 2480

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2015-443-054

[2018] NZHC 2480

IN THE MATTER OF the estate of DOREEN MARY FITZGERALD

UNDER

the Law Reform (Testamentary Promises) Act 1949

BETWEEN

ARNOLD GERARD FITZGERALD

Plaintiff

AND

MARIE ROSA MILLS, ANGELA MARY KISER and LOUISE MARY BUHLER as

executrices of DOREEN MARY FITZGERALD

Defendants

CIV-2017-443-022

IN THE MATTER OF

the estate of DANIEL JAMES FITZGERALD

UNDER

the Family Protection Act 1955

BETWEEN

MARIE ROSA MILLS, ANGELA MARY KISER and LOUISE MARY BUHLER

Plaintiffs

AND

ARNOLD GERARD FITZGERALD and THERESE MARY MUGGERIDGE as

remaining executors of the estate of DANIEL JAMES FITZGERALD

Defendants

Hearing: 30 July-3 August; 6-10 August; 17 August 2018

Counsel:

R T Wilson for plaintiff/defendants

R C Laurenson and M E M Walden for defendants/plaintiffs

Judgment:

21 September 2018

FITZGERALD v MILLS [2018] NZHC 2480 [21 September 2018]

RESERVED JUDGMENT OF DOBSON J

Contents

Background [1]

The claims [9]

The family history [13]

Proceedings commenced out of time [41]

The legal elements [50]

Assessment of the evidence [58]

Doreen’s wills [62]

Arnold’s TPA claim [75]

The promise  [75]
Provision of work and services for Doreen  [84]
Values of the promise, and the services  [93]

Lawfulness of the sale and gifting of proceeds of the Rowan Road property [100]

Relief from unlawful gifting transactions [114]

Doreen’s alleged mal-administration of DJ’s estate [129] Who was the lessee of the Mary Fitzgerald estate land prior to DJ’s death? [135] The extent of Arnold’s life interest in DJ’s estate [158]

Quantifying Arnold’s TPA claim [167]

Arnold’s FPA claims [181]

Disentitling conduct affecting Arnold’s FPA claim [192]

Daniel’s FPA claim [198]

Claim for Arnold to pay rent for the homestead [203]

The three daughters’ FPA claim against DJ’s estate [212]

Outcome [217]

Costs [218]

Background

[1] The protagonists in this litigation are six of the seven children of Daniel James Fitzgerald (DJ) and Doreen Mary Fitzgerald (Doreen) who spent their working lives as Taranaki dairy farmers whilst bringing up their family.

[2] The major protagonist, Arnold Fitzgerald, is the younger of DJ and Doreen’s two sons, who has taken over the dairy farm that was previously farmed by DJ. It comprised three areas of farmland with different ownership histories and now comprises some 253 acres in Kaponga. The family home in which DJ and Doreen brought up their children, and which is now occupied by Arnold and his family, is on part of this land.

[3] Doreen owned a separate block of 125 acres some six kilometres away from the family home, which she acquired prior to her marriage to DJ (the Rowan Road property). It was used as a separate dairy farming operation during her lifetime.

[4] DJ died in December 1983, approximately 31 years before Doreen. With a focus on providing for the next male generation that would take over the farming business, DJ’s will left to Arnold a life interest in a 90 acre component of the family farm that he…

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.

Continue reading Fitzgerald v Mills

Details

AGLC: Fitzgerald v Mills [2018] NZHC 2480
Case: [2018] NZHC 2480
Decision Date: 21 September 2018

CaseChat Overview and Summary

The High Court of New Zealand New Plymouth Registry heard the case of Fitzgerald v Mills involving six of the seven children of Daniel James Fitzgerald and Doreen Mary Fitzgerald, who were dairy farmers in Taranaki. The case involved multiple claims under the Law Reform (Testamentary Promises) Act 1949 and the Family Protection Act 1955. Arnold Fitzgerald, the younger son, claimed that Doreen promised he would take over the Rowan Road property after her death. Arnold and Daniel also brought Family Protection Act claims against Doreen’s estate, alleging inadequate provision. In response, Marie, Angela, and Louise, three of Doreen's daughters, brought Family Protection Act claims against Daniel James Fitzgerald's estate, alleging inadequate provision, and a claim for rent allegedly owed by Arnold for occupation of the homestead from the time Doreen moved out of it, until her death.

The court found that Doreen did make a promise to Arnold that he would have the opportunity to buy the Rowan Road property at valuation at her death without having to compete on the open market, and likely on some concessionary terms. However, Doreen's final will made no specific reference to the Rowan Road property. The court also found that Arnold had made out a requisite testamentary promise on the terms described and the provision of services for Doreen in reliance on it beyond what could otherwise be expected of him. The court found that Doreen's estate for the purposes of the present claims is to be treated as comprising at least $3.3 million. The court declared that Arnold’s TPA claim is made out and sufficiently met with an order for $40,000 against Doreen’s estate. The court also found that Arnold’s FPA claim is made out and, having regard to the extent of the award under the TPA claim, a top-up of a further $10,000 is ordered. The court found that Daniel’s FPA claim is made out to the extent of $20,000. The court also ordered that executrices of Doreen’s will recover debts owing by the five daughters from the unlawful forgiveness of the loans made to them in 2011 but only to the extent necessary to meet all remaining liabilities of the estate including making payment of the awards totalling $50,000 to Arnold and $20,000 to Daniel, together with costs liabilities. The court indicated that Arnold and Daniel should be entitled to one set of costs for all the proceedings, on a 2B basis, and reduced by 40 per cent to take account of their failure to justify the criticisms of Doreen’s conduct as executrix of DJ’s estate.

Orders