Deceased farmer’s nephew not entitled to €1m Kerry Group shares, court rules

Man remains entitled to lower value of Kerry Co-Op shares gifted in uncle’s 1990 will

Thomas O’Connell was gifted “Kerry Co-Operative shares” in a 1990 will of his uncle, John T Cronin, who died some 23 years later in 2013, aged in his 90s. Photograph: iStock

Thomas O’Connell was gifted “Kerry Co-Operative shares” in a 1990 will of his uncle, John T Cronin, who died some 23 years later in 2013, aged in his 90s. Photograph: iStock

 

The nephew of a deceased bachelor farmer is not entitled to more than €1m worth of Kerry Group shares that are part of his uncle’s assets, the High Court has ruled.

The shares will instead be divided among the surviving siblings and extended family of the deceased.

Thomas O’Connell was gifted “Kerry Co-Operative shares” in a 1990 will of his uncle, John T Cronin, who died some 23 years later in 2013, aged in his 90s.

Mr O’Connell, who inherited his uncle’s farm, remains entitled to the estimated €272,438 value of those Kerry Co-Op shares but not to the Kerry Group shares.

Proceedings concerning the 1990 will arose because of material changes in the assets of the deceased, particularly concerning his shares in Kerry Co-Op and Kerry Group.

They were brought under the Succession Act by Pádraig O’Connell, as executor of the deceased’s estate, against Thomas O’Connell, as principal beneficiary of the will, and Breda (Bridie) Murphy, a sister of the deceased, representing herself, three other surviving siblings entitled to share in the residue of the estate and 30 persons, mainly nieces and nephews, entitled to varying shares.

In her judgment on Friday, Ms Justice Nuala Butler noted Mr Cronin, born in 1921, was one of 12 siblings reared on a small farm in Ballahantouragh in Co Kerry.

He left school as a teenager and began farming, later inheriting the 94 hectare (38 acre) family farm from his parents. He never married but was an integral part of a large extended family.

He lived a simple life, had no running water until very elderly and, although he had electricity, preferred to cook potatoes over an open hearth.

He lived frugally but was financially very secure and the €649,498 valuation of his estate for Revenue purposes in 2015, including his farm and assets, was a likely undervalue because the Kerry Co-Op shares were given their face value for a total €39,000, she said.

‘Striking’ increase

By the time of these proceedings, the Kerry Co-Op shares were said to have a value of €272,438 while there was an “even more striking” increase in the value of the Kerry Group shares from some €386,078 in 2015 to some €1.05 million.

The case centred on who is entitled to inherit shares in Kerry Group plc held by Mr Cronin at the time of his death but not when his will was made in 1990.

This was because, over a period between 1993 and 2013, shares in Kerry Co-Op were cancelled and exchanged for shares in Kerry Group plc.

Mr Cronin held 1,411 shares in Kerry Co-Op in 1993 but, at his death, held just 390 shares in Kerry Co-Op. The remainder of his shares had been cancelled and exchanged for 8,937 Kerry Group shares.

Thomas O’Connell argued the Kerry Group shares were included in the gift made by his uncle to him. He argued that was legally so, as the Kerry Group shares had been substituted for the Kerry Co-Op shares and because that was his uncle’s frequently expressed intention.

Ms Murphy maintained there was no ambiguity in the will and that it operated to pass Kerry Co-Op shares held by her brother at his death to Mr O’Connell while the Kerry Group shares not expressly disposed of by her brother in his will fell into the residue of his estate.

Ms Justice Butler said she was unable to conclude there is a sound legal basis for treating the gift to Thomas O’Connell of the Kerry Co-Op shares as carrying with it a gift of the Kerry Group plc shares Mr Cronin did not own at the time he made his will.

While the history of Kerry Group plc is very much intertwined with Kerry Co-Op, the two are distinct legal entities with different legal structures carrying on different businesses. Significantly, Kerry Co-Op continues to exist as a legal entity and has not been absorbed into Kerry Group plc.

It is not possible to say Mr Cronin’s shareholding in Kerry Co-Op remains the same as his shareholding in Kerry Group, she said. The change is more than of form or name, it is “of substance”.

Reading the words “Kerry Co-Operative shares” as limited to those shares is not inconsistent with the sentiments expressed by Mr Cronin that his nephew would inherit the farm and, through the shares, have sufficient funds to make improvements to it.

It was “notable”, and to Mr O’Connell’s credit, that he did not assert his uncle ever made any specific comment to him about Kerry Group plc shares, she said.