Floyd v Floyd - [2017] QDC 198

DISTRICT COURT OF QUEENSLAND

CITATION:

Floyd v Floyd & Ors [2017] QDC 198

PARTIES:

BRIAN FRANCIS WILLIAM FLOYD (AS EXECUTOR OF THE WILL OF SHIRLEY MARGARET LOOBY)

(applicant)

v

BRADLEY THOMAS FLOYD

(first respondent)

AND

LORRAE DAY

(second respondent)

AND

DONNA DANAHER

(third respondent)

AND

MITCHELL DANAHER

(fourth respondent)

AND

STUART FLOYD

(fifth respondent)

AND

MURRAY FLOYD

(sixth respondent)

AND

STEPHANIE LOUISE SNOOK

(seventh respondent)

AND

JACKSON PHILLIP SNOOK

(eighth respondent)

AND

BRITTANY LOUISE MARLER-BAXTER

(ninth respondent)

AND

ZOE ANNALISE MARLER-BAXTER

(tenth respondent)

BRAYDEN THOMAS FLOYD

(eleventh respondent)

JAMIE-LEE FLOYD

(twelfth respondent)

AND

LACHLAN GRAHAM FLOYD

(thirteenth respondent)

AND

CHOLE MARIE FLOYD

(fourteenth respondent)

FILE NO/S:

2312/17

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

27 July 2017

JUDGE:

Andrews SC DCJ

ORDER:

1.   It is declared that, on the proper construction of the Will dated 17 February 2009 of Shirley Margaret Looby, deceased:

a.    the Applicant is the beneficiary of the gift of “furniture – car – incidentals” contained in the clause headed “gifts”; and

b.    the gift of “HOUSE & CASH ASSETS” contained in the clause headed “RESIDUARY ESTATE” includes the deceased’s shareholdings.

2.   The Applicant’s costs of and incidental to this application on the indemnity basis be paid out of the deceased’s estate.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND THE EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – GENERAL PRINCIPLES OF CONSTRUCTION – ADMISSIBILITY OF EXTRINSIC EVIDENCE – where section 33C Succession Act 1991 sets out what extrinsic evidence is admissible in interpreting a will – where gift to B Floyd – where 3 relatives met that description – where gift of CASH ASSETS – whether shareholding included – where a partial intestacy unless shareholding included – where extrinsic evidence existed

Succession Act 1981 (Qld) s 33C (1) (b)

Allgood v Blake (1873) LR 8 Ex 160
Ashton v Ashton [2010] QSC 326
Brennan v Permanent Trustee Co (1945) 73 CLR 404
Fell v Fell (1922) 31 CLR 266; [1922] HCA 55
Martin v Rumble Unreported, Supreme Court of Victoria, Ashley J, 12 May 1994
Parnell v Hinckley [2007] WASC 102
Perrin v Morgan [1943] AC 399
Public Trustee of Queensland v Smith [2009] 1 Qd R 26
Re Cadogan (1883) 25 Ch D 154
Re Taylor; Taylor v Tweedie [1923] 1 Ch 99
Re Willis [1996] 2 Qd R 664
Underwood v Underwood [2007] QSC 256

COUNSEL:

R Williams

SOLICITORS:

Fallu McMillan Lawyers

Shirley Margret Looby (“the Deceased”) died on 20 November 2016, aged 75 years. Her death certificate indicates that her husband predeceased her, and that she was not survived by any children.[1]
[1]Death certificate, exhibit BF-1 to affidavit of B Floyd (Court doc 2).

Probate of the Deceased’s will dated 17 February 2009 (“the Will”) was granted to her brother Brian Francis William Floyd (the Applicant in this proceeding) as named executor, on 20 April 2017.[2]
[2]Grant of probate with the Will, exhibit BF-2 to…

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 Floyd v Floyd

Details

AGLC: Floyd v Floyd [2017] QDC 198
Case: [2017] QDC 198
Decision Date: 27 July 2017

CaseChat Overview and Summary

In the case of Floyd v Floyd, the dispute revolves around the interpretation of the will of Shirley Margaret Looby, who passed away. The primary issue is the proper construction of certain testamentary dispositions, specifically those concerning the gift of "furniture – car – incidentals" and "HOUSE & CASH ASSETS." The dispute arose among relatives, including the applicant, who claimed to be the intended beneficiary of these assets. The court was tasked with determining whether the deceased's shareholdings were included in the gift of "HOUSE & CASH ASSETS" and if the applicant was the rightful beneficiary of the other specified assets.

The legal issues that the court had to address included the admissibility of extrinsic evidence in interpreting the will, guided by section 33C of the Succession Act 1991. The court needed to consider whether the extrinsic evidence provided could clarify the ambiguous terms of the will. Additionally, the court had to decide whether the gift of "HOUSE & CASH ASSETS" included the deceased's shareholdings and whether the applicant was indeed the intended beneficiary of the "furniture – car – incidentals."

The court ruled that the applicant was the rightful beneficiary of the "furniture – car – incidentals" as per the clause titled "gifts." Furthermore, the court held that the gift of "HOUSE & CASH ASSETS" included the deceased's shareholdings, thereby avoiding a partial intestacy. This decision was based on the admissible extrinsic evidence provided, which helped to clarify the terms of the will. The court determined that the evidence was sufficient to support the inclusion of the shareholdings in the gift of "HOUSE & CASH ASSETS."

The final orders of the court declared that the applicant was the beneficiary of the "furniture – car – incidentals" and that the "HOUSE & CASH ASSETS" included the deceased's shareholdings. Additionally, the court ordered that the applicant's costs of and incidental to this application be paid out of the deceased's estate on an indemnity basis.

Orders

Orders of the court

1. It is declared that, on the proper construction of the Will dated 17 February 2009 of Shirley Margaret Looby, deceased:

a. the Applicant is the beneficiary of the gift of “furniture – car – incidentals” contained in the clause headed “gifts”; and

b. the gift of “HOUSE & CASH ASSETS” contained in the clause headed “RESIDUARY ESTATE” includes the deceased’s shareholdings.

2. The Applicant’s costs of and incidental to this application on the indemnity basis be paid out of the deceased’s estate.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Floyd v Floyd & Ors [2017] QDC 198
PARTIES:	BRIAN FRANCIS WILLIAM FLOYD (AS EXECUTOR OF THE WILL OF SHIRLEY MARGARET LOOBY) (applicant) v BRADLEY THOMAS FLOYD (first respondent) AND LORRAE DAY (second respondent) AND DONNA DANAHER (third respondent) AND MITCHELL DANAHER (fourth respondent) AND STUART FLOYD (fifth respondent) AND MURRAY FLOYD (sixth respondent) AND STEPHANIE LOUISE SNOOK (seventh respondent) AND JACKSON PHILLIP SNOOK (eighth respondent) AND BRITTANY LOUISE MARLER-BAXTER (ninth respondent) AND ZOE ANNALISE MARLER-BAXTER (tenth respondent) BRAYDEN THOMAS FLOYD (eleventh respondent) JAMIE-LEE FLOYD (twelfth respondent) AND LACHLAN GRAHAM FLOYD (thirteenth respondent) AND CHOLE MARIE FLOYD (fourteenth respondent)
FILE NO/S:	2312/17
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	27 July 2017
DELIVERED AT:	Brisbane
HEARING DATE:	27 July 2017
JUDGE:	Andrews SC DCJ
ORDER:	1. It is declared that, on the proper construction of the Will dated 17 February 2009 of Shirley Margaret Looby, deceased: a. the Applicant is the beneficiary of the gift of “furniture – car – incidentals” contained in the clause headed “gifts”; and b. the gift of “HOUSE & CASH ASSETS” contained in the clause headed “RESIDUARY ESTATE” includes the deceased’s shareholdings. 2. The Applicant’s costs of and incidental to this application on the indemnity basis be paid out of the deceased’s estate.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND THE EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – GENERAL PRINCIPLES OF CONSTRUCTION – ADMISSIBILITY OF EXTRINSIC EVIDENCE – where section 33C Succession Act 1991 sets out what extrinsic evidence is admissible in interpreting a will – where gift to B Floyd – where 3 relatives met that description – where gift of CASH ASSETS – whether shareholding included – where a partial intestacy unless shareholding included – where extrinsic evidence existed Succession Act 1981 (Qld) s 33C (1) (b) Allgood v Blake (1873) LR 8 Ex 160 Ashton v Ashton [2010] QSC 326 Brennan v Permanent Trustee Co (1945) 73 CLR 404 Fell v Fell (1922) 31 CLR 266; [1922] HCA 55 Martin v Rumble Unreported, Supreme Court of Victoria, Ashley J, 12 May 1994 Parnell v Hinckley [2007] WASC 102 Perrin v Morgan [1943] AC 399 Public Trustee of Queensland v Smith [2009] 1 Qd R 26 Re Cadogan (1883) 25 Ch D 154 Re Taylor; Taylor v Tweedie [1923] 1 Ch 99 Re Willis [1996] 2 Qd R 664 Underwood v Underwood [2007] QSC 256
COUNSEL:	R Williams
SOLICITORS:	Fallu McMillan Lawyers