K v K

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 07 November 2018
• Neutral Citation: [2018] IEHC 615
• Court: High Court
• Docket Number: [2013 No. 7394 P.]
• Date: 07 November 2018

[2018] IEHC 615

THE HIGH COURT

McDonald J.

[2013 No. 7394 P.]

IN THE MATTER OF THE ESTATE OF K, DECEASED, AND IN THE MATTER OF SECTION 117 OF THE SUCESSION ACT 1965

BETWEEN

K

PLAINTIFF

AND

K

DEFENDANT

Specific performance – Testamentary contract – Equity – Plaintiff seeking specific performance of a testamentary contract – Whether the plaintiff was entitled to a parcel of land

Facts: The plaintiff made a claim based on promissory estoppel, proprietary estoppel and/or legitimate expectation that a particular parcel comprising 90 acres of the family farm, was held by the defendant as trustee for the benefit of the plaintiff. The claim was advanced on the basis of a number of alleged representations which the plaintiff claimed were made to him during their respective lifetimes by his late father, uncle and mother. The plaintiff claimed that, acting on foot of those representations, he left school at an early age and thereafter devoted his life to the family farm. Alternatively, the plaintiff claimed that he was entitled to the parcel of lands in question on the basis of a testamentary contract made between him and his mother (the deceased) under which (so he claimed) the deceased agreed to devise to the plaintiff those lands in her will and he sought specific performance of that testamentary contract. In the alternative, the plaintiff sought a declaration pursuant to s. 117 of the Succession Act 1965 that the deceased failed in her moral duty to make proper provision for the plaintiff in accordance with her means. In the course of the hearing, the case made by the plaintiff was that the parcel of 90 acres would constitute such proper provision.

Held by the High Court (McDonald J) that he would make an order for the specific performance of the testamentary contract requiring the defendant, as personal representative of the deceased, to transfer to the plaintiff the 90 acres that were identified during the course of the court hearing; that was the extent of what was promised to the plaintiff under the testamentary contract. The gift to him under the 1997 Will was more extensive than what was promised to him but, in McDonald J's view, the plaintiff was only entitled to enforce the promise; he was not entitled to take the benefit of the 1997 Will. To ensure that any order made by the court was capable of precise interpretation and enforcement, McDonald J directed that the plaintiff's solicitor should prepare a map based on the evidence given in the course of the hearing precisely delineating the 90 acres in question; the map should be supplied to the defendant's solicitor in the first instance so that the defendant's side could make any necessary suggestions in relation to the map. In the event of any dispute between the parties, McDonald J would rule on that dispute. In circumstances where the small parcel of lands given by the deceased to the plaintiff under the 2011 Will formed part of the 90 acres, McDonald J held that no issue arose in respect of double recovery. McDonald J declared that the lands to be transferred to the plaintiff were in substitution for any gift to the plaintiff under the 2011 Will.

McDonald J held that the only appropriate way in which to satisfy the equity of the plaintiff was to make a declaration, in the alternative to the order for specific performance proposed, that the plaintiff was entitled to the 90 acres in satisfaction of the equity arising in respect of his parallel proprietary estoppel claim.

Judgment approved.

JUDGMENT of Mr. Justice Denis McDonald delivered on the 7th day of November, 2018

Introduction

1 The plaintiff and the defendant in these proceedings are brothers. They have four other siblings, namely three sisters and one brother. The plaintiff is the second eldest in the family. He is the eldest male but he has one sister who is older than him. He was born in 1965. He is married and has two children and he currently works as a self-employed hackney driver.

2 The defendant (who is also married) is the executor and personal representative of the late mother of both parties. In this judgment I will refer to their mother as 'the deceased'. In circumstances where the proceedings involve a claim under s. 117 of the Succession Act 1965 (the 1965 act) it is important that I do not reveal any detail in this judgment which would identify any of the parties. I will therefore refer to the parties themselves as 'plaintiff' and 'defendant' respectively and I will refer to all other persons and any relevant place names by reference to a letter of the alphabet or by some other mechanism which avoids use of their actual names. I sincerely hope that the in camera rule which applies to these proceedings will assist the parties (and the other members of the K family) in maintaining their privacy in relation to the events described in this judgment. Regrettably, it will be necessary in this judgment to consider many aspects of the life of this family which, in the absence of a court hearing, would remain entirely private.

The Will of the deceased

3 While there were earlier wills executed by her (and while a number of draft wills were prepared on her behalf during her lifetime) the last will and testament of the deceased was executed in August 2011. The deceased subsequently died in 2013. The defendant thereafter took out a grant of probate in January 2015.

4 Under her will, the deceased left her china, delph and cutlery to her three daughters. Each of the daughters are also to receive a bequest of €5,000 each. Both the defendant and the remaining son are to receive substantial gifts of land which formed part of the family farm built up by the deceased's late husband (the father of all five children) and his brother (who I shall refer to as 'the uncle').

5 The plaintiff is also to receive a gift of lands. However, in his case, the lands extend to no more than 3.5 acres. In the Inland Revenue affidavit, the value of these lands as of the date of death of the deceased was €42,000. While the value of the gifts to each of the three daughters of the deceased is also modest, the value of the gift to the plaintiff contrasts starkly with the value of the gifts to the defendant and the remaining brother. In the Inland Revenue affidavit, the value of the gifts to the defendant (including any benefits passing by survivorship) was given as €3,006,365 while the value of the gifts, (again including any benefits passing by survivorship) to the remaining brother was €748,547.

The plaintiff's claim

6 The plaintiff makes a number of claims which can broadly be summarised as follows: -

(a) The plaintiff makes a claim based on promissory estoppel, proprietary estoppel and/or legitimate expectation that a particular parcel comprising 90 acres of the family farm, is held by the defendant as trustee for the benefit of the plaintiff. This claim is advanced on the basis of a number of alleged representations which the plaintiff claims were made to him during their respective lifetimes by his late father, the uncle and the deceased. As explained in more detail below, the plaintiff claims that, acting on foot of these representations, he left school at an early age and thereafter devoted his life to the family farm;

(b) Alternatively, the plaintiff claims that he is entitled to the parcel of lands in question on the basis of a testamentary contract made between him and the deceased under which (so he claims) the deceased agreed to devise to the plaintiff those lands in her will and he seeks specific performance of that testamentary contract;

(c) In the alternative, the plaintiff seeks a declaration pursuant to s. 117 of the 1965 act that the deceased failed in her moral duty to make proper provision for the plaintiff in accordance with her means. In the course of the hearing, the case made by the plaintiff was that the parcel of 90 acres described above would constitute such proper provision;

(d) At one point, the plaintiff also advanced a claim based on a quantum meruit. However, in the course of the hearing, it was accepted by his counsel that he was no longer advancing such a claim.

7 In his statement of claim, the plaintiff contends that it was always envisaged by the deceased, her husband, the plaintiff and the uncle that the plaintiff would inherit one-third of the farm. It is alleged that after the plaintiff left school at fifteen years of age in 1980 to work on the farm, he worked long days and nights on the farm to generate income to repay a large indebtedness owed to a bank arising from the purchase of part of the farm. He did not receive any wage for his work as his father often stated ' You're doing it for yourself, sure I can't take it with me'. In contrast, it is alleged that the plaintiff's brothers (namely the defendant and remaining brother) worked only occasionally on the home farm and did not show the same interest in farming as was shown by the plaintiff. The plaintiff also makes the following allegations in the statement of claim: -

(a) The plaintiff refers to his father's will of 11 February 1993 under which he left his entire estate (save for some small legacies to his daughters) to the deceased. However, the plaintiff contends that the estate was left to the deceased on this basis on the understanding that it would be shared equally between the plaintiff and his two brothers after her lifetime.

(b) The plaintiff also contends that, following his father's death in 1996, it was specifically represented to him by the deceased that he would get the 90 acres of land described above under her Will.

(c) It is also alleged that in 1997 the deceased, the plaintiff, the defendant and the remaining brother started a sand and gravel business on the family farm and that the plaintiff purchased the first lorry and trailer for that business in 1999. This subsequently developed into a concrete business which was very successful.

(d) The...