Re Foord

Case [2019] VSC 444 2 July 2019

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S ECI 2018 00899

IN THE MATTER of an application pursuant to Order 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 for directions in relation to the administration of the estate

-and-

IN THE MATTER of the estate of VERA HELEN FOORD, deceased

LASZLO KOHEGYI (as executor of the estate of VERA HELEN FOORD, deceased)	Plaintiff
v
DAVID ROBERT FOORD & MICHAEL FREDERICK FOORD	Defendants

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	2 July 2019
CASE MAY BE CITED AS:	Re Foord
MEDIUM NEUTRAL CITATION:	[2019] VSC 444

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WILLS — Construction of will — Subject matter of gift sold by attorney — Whether principles of ademption apply to sale — Gift general not specific — Principles of ademption not applicable — Powers of Attorney Act 2014 (Vic) s 83A — Simpson v Cunning (2011) 4 ASTLR 584; RL v NSW Trustee and Guardian (2012) 84 NSWLR 263.

SUCCESSION — Administration of estate — Meaning of ‘personal chattels’ — Whether gold bullion and silver coins constitute personal chattels — Gold bullion and silver coins not personal chattels — Administration and Probate Act 1958 (Vic) s 5.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Gillies	Wilckens Roche Lawyers
For the Defendants	Mr A Burnett	Petersen Westbrook Cameron

HER HONOUR:

Introduction

Vera Helen Foord died on 12 January 2018. Probate of her will dated 28 October 2009 was granted to the plaintiff on 6 April 2018. The deceased was survived by her three sons, William Foord, David Robert Foord and Michael Frederick Foord. The latter two sons are the defendants in the proceeding.

The deceased’s will provides as follows:

I GIVE to my son WILLIAM FOORD all my personal chattels (as those words are defined by the Administration and Probate Act 1958.)
SUBJECT TO the payment of all expenses associated with my death and the administration of my estate including all debt taxes and duties of any kind payable on or by my estate or in respect to property deemed to form part of my estate I GIVE all my real estate and the residue of my personal estate (in this Will called “my residuary estate”) to my Trustees UPON TRUST to divide the same into four (4) equal parts and to dispose of the same as follows:
(a)TO pay or transfer two (2) of such parts to my son WILLIAM FOORD absolutely;
(b)TO pay or transfer one (1) of such parts to my son DAVID ROBERT FOORD absolutely;
(c)TO pay or transfer the remaining one (1) of such parts to my son MICHAEL FREDERICK FOORD absolutely.

At the date of execution of her will, the deceased’s principal asset was her home in Williamstown. Pursuant to a power of attorney, William Foord sold the Williamstown property on 26 August 2010 for $560,000. Most of the sale proceeds were used for…

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 Re Foord

Details

AGLC: Re Foord [2019] VSC 444
Case: [2019] VSC 444
Decision Date: 2 July 2019

CaseChat Overview and Summary

The case of Re Foord dealt with the interpretation of a will and the administration of an estate in the context of Victoria. The deceased, Mr. Foord, left a will that included a general gift of his personal chattels to a named beneficiary. Prior to his death, Mr. Foord's attorney sold some of his personal property, including gold bullion and silver coins. The central issue in this case was whether the principles of ademption applied to the sale of the personal property, particularly if the gold bullion and silver coins were to be considered personal chattels. The court had to determine whether these items fell within the definition of personal chattels under the Administration and Probate Act 1958 (Vic).

The court examined the applicability of ademption, which is a principle that applies when a specific gift is lost or destroyed before the testator's death. However, the court found that the gift in question was not specific but general, thus the principles of ademption were not applicable. Furthermore, the court considered the definition of 'personal chattels' under the relevant legislation and found that gold bullion and silver coins did not constitute personal chattels. The court relied on previous case law, notably Simpson v Cunning and RL v NSW Trustee and Guardian, to support its reasoning.

Ultimately, the court concluded that the principles of ademption did not apply to the sale of the personal property because the gift was general. Moreover, gold bullion and silver coins were not considered personal chattels under the statute. Consequently, the sale of these items by the attorney was valid, and the gift to the beneficiary remained intact. The court's decision clarified the interpretation of general gifts in wills and the specific definition of personal chattels under the Administration and Probate Act 1958 (Vic).

Orders