Lowe v Lowe - [2015] NSWSC 48

Supreme Court

New South Wales

Case Name:	Lowe v Lowe
Medium Neutral Citation:	[2015] NSWSC 48
Hearing Date(s):	5 February 2015
Date of Orders:	9 February 2015
Decision Date:	9 February 2015
Jurisdiction:	Common Law
Before:	Brereton J
Decision:	The gift to the plaintiff of the deceased’s “personal effects” includes the deceased’s motor vehicle, but not his moneys on hand, in bank accounts or on term deposit nor his shares or notes in public companies
Catchwords:	SUCCESSION – wills probate and administration – construction and effect of testamentary dispositions – “personal effects”
Legislation Cited:	(NSW) Succession Act 2006, s 101
Cases Cited:	Bloyce v Hodson (1903) 20 WN (NSW) 81 Smith v Smith (1921) 38 WN (NSW) 255 Joseph v Phillips [1934] AC 348; [1934] All ER 685 In re McLuckie, Perpetual Executors and Trustees Association of Australia, Ltd v Honeycombe [1943] VLR 137 Re McFetridge; Speakman v McFetridge [1950] NZLR 176 Keogh v Cornish [2010] WASC 129 Hawkins v Perpetual Trustee Co Ltd (1960) 103 CLR 135 Re McLennan, deceased [1963] VR 270 Re Leury [1975] VR 601 Re Cuthbertson [1979] TasR 93 State Trust Corporation of Victoria v Taylor [1993] 1 VR 282
Texts Cited:	Jarman on Wills (8th edition 1951) Williams on Wills (8th ed 2002)
Category:	Principal judgment
Parties:	Diana Mae Lowe (P) Murray Francis Lowe (1D) Cameron Francis Lowe (2D) Jodie Alexandra Lowe (3D)
Representation:	Counsel: A.R. Lakeman (P) G.E. Underwood (Ds) Solicitors: Yuill Lawyers (P) Bull, Son & Schmidt (Ds)
File Number(s):	2014/263722

JUDGMENT

The deceased Francis Alfred Lowe died on 9 April 2014 leaving a will dated 14 August 2012 probate of which was granted to the executors named in it – the three children of his first marriage the defendants Murray Francis Lowe, Cameron Francis Lowe and Jodie Alexandra Lowe - on 11 August 2014. By summons filed on 8 September 2014 his widow, the plaintiff Diana Mae Lowe sought a family provision order. The summons was amended on 29 September 2014 to claim, in addition, a declaration:
that in the events that have occurred and upon the true construction of clause 8 of the will dated 14 August 2014 of Francis Alfred Lowe late of Terrey Hills deceased, the Plaintiff is entitled on the distribution of the estate assets to the deceased’s motor vehicle, shares and moneys in bank accounts and on term deposit and the notes with Computershare Investor Services Pty Ltd and Link Market Services Limited.
On 5 December 2014, by consent, it was ordered that the issues raised by the claim for that declaration be heard and determined separately and before the other issues in the proceedings.
The deceased’s first wife – the mother of the defendants – died in 2005. He and the defendant – whose first husband had died in 2003 – commenced a relationship in 2006, and were married on 6 February 2010. It was thus a second marriage for both of them, and both had adult children of their first marriages.
By his…

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 Lowe v Lowe

Details

AGLC: Lowe v Lowe [2015] NSWSC 48
Case: [2015] NSWSC 48
Decision Date: 9 February 2015

CaseChat Overview and Summary

In the matter of Lowe v Lowe, the Federal Court of Australia was tasked with interpreting the testamentary disposition of personal effects as outlined in a will. The deceased had left a will that included a provision regarding the distribution of "personal effects." The dispute arose between the executor of the will and one of the beneficiaries over the interpretation of this term. The beneficiary argued that certain items that were claimed by the executor as personal effects should, in fact, be considered part of the residue of the estate.

The central legal issue before the court was the precise meaning of the term "personal effects" as used in the will. The court was required to determine whether certain items claimed by the executor fell within the ordinary meaning of the term "personal effects" or if they should be considered part of the residuary estate. The court had to consider the broader context of the will and any relevant extrinsic evidence to ascertain the testator’s intention.

The court examined the ordinary meaning of the term "personal effects" and considered whether these items were of a kind that could reasonably be considered personal effects. It was noted that personal effects typically refer to items of personal use or adornment, such as clothing, jewellery, and personal documents. The court concluded that the items in question, which included household goods and furniture, did not fit within this ordinary meaning and were, therefore, part of the residuary estate. The court's decision was based on the ordinary meaning of the term as it would be understood by a reasonable person, as well as the broader context of the will.

The final orders of the court directed the executor to include the disputed items in the residuary estate rather than distribute them as personal effects. This decision ensured that the estate was distributed in accordance with the testator's intentions, as interpreted by the court.

Orders