Their parents died six weeks apart. Six years on, it was brothers pitted against sisters in a dispute over sale of their parents’ Bay of Plenty orchard. In what boiled down to a dispute over price, estate lawyers resigned over the siblings failure to take a common-sense approach; getting an independent valuation and selling to the one brother living on the property.
The High Court was told Tony and Jutta Firmin purchased bare land at Awakeri, near Whakatane, in the 1970s, establishing a feijoa and berry orchard.
Jutta predeceased Tony by a matter of weeks. He was the sole beneficiary of her estate. On Tony’s death, his will divided his estate equally between their six children: sons Tim and Tom; daughters Cornelia, Abigail, Gisele and Petra.
Evidence was given of son Tim returning from Australia in 2015 to help his parents on the orchard. He lived in a shed on site, described as being in poor condition and not rentable.
A below market wage was paid. For a period, no wages were paid at all; ‘down payment’ on his deposit to buy the orchard, Tim was to later tell the High Court.
The extent of orchard work undertaken by Tim was later disputed by his sisters, claiming work was intermittent with Tim primarily focussed on breeding schnauzer dogs.
On death of their surviving parent, Tim offered to buy the orchard for $800,000. Two sisters, acting as estate executors, declined the offer. His purchase was conditional on finance, with Tim’s ability to obtain finance or service mortgage debt both in question. The GST status of any deal also required clarification.
Daughter Petra subsequently offered to buy at $935,000. In the late 1990s, she had a ‘lease-to-buy’ deal with her parents, planning to assume ownership of the orchard. The High Court was told no sale eventuated, with the collapsed deal eventually costing Petra $40,000.
Tim was given an opportunity to put a deal together at Petra’s now offer price of $935,000.
Meanwhile, he was asked to leave their family home, finding somewhere else to live.
Tim’s response was to file a Law Reform (Testamentary Promises) Act claim stating their father had earlier agreed that he would have first option to buy. Brother Tom supported this claim. They said their father’s discussions with his lawyer in the weeks prior to death indicated he wanted to change his will, recording Tim’s right of first refusal.
Tim claimed he was entitled to buy at $800,000; a valuation obtained years previously.
Justice McHerron ruled there had never been any agreement or understanding that Tim’s work on the orchard would lead to him having a right of first refusal. No ‘testamentary promise’ existed.
Their father’s discussions with his lawyer merely canvassed the need to ensure he could remain living on the property, if he sold to Tim before he died. Discussions did not extend to any possible change to his will, giving Tim a right of first refusal.
The lawyer said in evidence that their father’s discussions had focussed on the size of any specific bequest to Tim as compensation for unpaid wages, with $10,000 settled on as an appropriate figure.
This figure was an underestimation, Justice McHerron said. He awarded Tim just under $25,000 for unpaid wages. This is a debt owed by his late father’s estate.
Justice McHerron left estate lawyers to decide whether Tim should be charged for his rent free accommodation, living in their parents’ home since their deaths.
His sisters want the orchard sold, and their father’s estate finalised.
Firmin v. Porter – High Court (28.11.25)
26.029