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Ireland v Grant

Ireland v Grant

Case [2014] NZHC 1523 2 July 2014

Estate & Succession Law

Contract Law

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2014-412-000014 [2014] NZHC 1523

BETWEEN
DENNIS PAUL IRELAND and ANGELA

CATHERINE IRELAND Appellants

AND

STEPHEN JOHN GRANT and DAVID JAMES SMELLIE

First Respondents

ROLIEN GEERTRUIA BUSCH Second Respondent

Hearing: 6 and 18 June 2014

Appearances:

L A Andersen for Appellants
J K Hambleton and D P Robinson for First Respondents
T J Shiels QC for Second Respondent

Judgment:

2 July 2014

JUDGMENT OF GENDALL J

Table of Contents

Para No

Introduction [1]

The appeal [6]

Early background to the appeal [14]

The Law Reform (Testamentary Promises) Act 1949 and its requirements [23]

Was a promise made? [33]

Introduction [33]

Mrs Osmand’s wills [34]

The evidence for the Irelands [41]

The evidence for the respondents [68]

Analysis [76]

Conclusion as to a promise [86]

Were work or services performed and was there a nexus between the promise

and the services rendered?
[88]

Did the Irelands pay towards the Versatile Cottage? [89]

Other services and work undertaken [92]

IRELAND v GRANT [2014] NZHC 1523 [2 July 2014]

Nexus [98]

Was remuneration provided to the Irelands while Mrs Osmand was alive? [99]

Relief and quantum [107]

Conclusion [112]

Costs [116]

Introduction

[1] The appellants (the Irelands) sought an order from the Family Court under the Law Reform (Testamentary Promises Act) 1949 (the TPA) with respect to a farm property at 590 Portobello Road, Dunedin, (the farm) which is the major asset in the estate of Betty Osmand (Mrs Osmand). Mrs Osmand died on 4 September 2011.

[2] The application to the Family Court was advanced on the ground that the Irelands had undertaken work and rendered services to Mrs Osmand during her lifetime and that she had expressly promised the Irelands to reward them for this work and services by leaving the farm to them.

[3] Although in a will made in 1991 Mrs Osmand had indeed left the bulk of her estate and the farm to Mr Ireland, in the later will she signed in 2001 and in her final
2008 will she revoked this and left all her estate to her adoptive daughter, the second respondent Rolien Busch (Ms Busch).

[4] Both Ms Busch and the first respondents, who are the executors and trustees of Mrs Osmand’s estate, opposed the Irelands’ TPA claim and denied that any express promise was made by Mrs Osmand. They said further that in any event, any work and services which were provided by the Irelands were not beyond the norm and need to be seen in the context of what are said to be considerable benefits received by the Irelands from Mrs Osmand during her lifetime.

[5] In his reserved decision in the Family Court dated 9 December 2013

Judge Flatley dismissed the Irelands’ claim and found that no testamentary promise was made to them by Mrs Osmand in terms of the TPA. It is that decision which is the subject of this appeal.

The appeal

[6] In their notice appeal filed on 24 January 2014…

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 Ireland v Grant

Details

AGLC: Ireland v Grant [2014] NZHC 1523
Case: [2014] NZHC 1523
Decision Date: 2 July 2014

CaseChat Overview and Summary

The appeal was heard by Gendall J. The appellants, the Irelands, sought relief under the Law Reform (Testamentary Promises) Act 1949 (TPA) with respect to a farm property which was the major asset in the estate of Betty Osmand (Mrs Osmand). Mrs Osmand died on 4 September 2011. In her will made in 1991, Mrs Osmand left the bulk of her estate and the farm to Dennis Ireland (Mr Ireland), but in her later wills she revoked this and left all her estate to her adoptive daughter, Rolien Busch (Ms Busch). The Irelands claimed that they had worked and rendered services to Mrs Osmand during her lifetime and that she had expressly promised to reward them by leaving the farm to them. The Irelands' claim was dismissed by Judge Flatley in the Family Court, and they appealed this decision. The appeal was based on the contention that the Family Court Judge erred in fact and in law in dismissing the Irelands’ claim and finding that no testamentary promise was made to them by Mrs Osmand in terms of the TPA. The court found that the Family Court had erred in finding that no testamentary promise had been made by Mrs Osmand to the Irelands. The court found that a promise had been made by Mrs Osmand to the Irelands, and that services and work had been performed in reliance on that promise. The court found that the services and work performed by the Irelands were of sufficient value to warrant Mrs Osmand leaving the farm to them. The court found that the Irelands had a more significant emotional attachment to the farm than Ms Busch, but also recognised that Ms Busch had a strong moral claim to Mrs Osmand’s estate. The court concluded that a fair and reasonable outcome in the present case was to make an order vesting 50% of the farm in the Irelands, leaving the remaining net assets of the estate to go to Ms Busch in accordance with her will.

Orders