Rutledge v Sheridan - [2010] QSC 257

SUPREME COURT OF QUEENSLAND

CITATION:

Rutledge v Sheridan [2010] QSC 257

PARTIES:

HELEN MARY RUTLEDGE
(applicant)

V

MICHAEL PARTRICK SHERIDAN AND HELEN MARY RUTLEGE AS PERSONAL REPRESENTATIVES OF THE WILL OF THE LATE ANTHONY HENRY HOUGHTON, DECEASED
(respondent)

FILE NO/S:

BS 13809 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

19 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7 May 2010

JUDGE:

Daubney J

ORDER:

1. The application will be dismissed.

2. I will hear the parties as to costs.

CATCHWORDS:

GIFTS – GIFTS INTER VIVOS – IMPERFECT GIFTS – RELEVANT PRINCIPLES – RULE IN STRONG V BIRD – where the applicant contends that the deceased made a gift of funds in a specified account to her before his death even though the funds were not formally transferred into her name – where the deceased signed a document stating “I wish to transfer the whole of the balance of the above account to [the applicant]” and instructed his attorney to arrange the transfer – whether the rule in Strong v Bird operates to entitle the applicant to a declaration that the account does not form part of the deceased’s estate and an order that the executors of the deceased’s estate formally transfer the property to her

Benjamin v Leicher (1998) 45 NSWLR 389, cited
Blackett v Darcy (2005) 62 NSWLR 392, cited
Cope v Keene (1961) 118 CLR 1, applied
In Re Innes; Innes v Innes (1910) 1 Ch 188, cited
In re Freeland; Jackson v Rodgers [1952] Ch 110, cited
In Re Pink; Pink v Pink (1912) 1 Ch 498, cited
In Re Stewart; Stewart v McLaughlin (1908) 2 Ch 251, cited
Matthews v Matthews (1913) 17 CLR 8, cited
Strong v Bird (1874) LR 18 Eq 315, distinguished

COUNSEL:

DA Skennar for the applicant
JO McClymont for the respondent
R Reed for the beneficiaries under the will

SOLICITORS:

Davidson & Sullivan for the applicant
Hede Byrne & Hall for the respondent
Roberts & Kane Solicitors for the beneficiaries under the will

[1] Mr Anthony Henry Houghton (“the deceased”) died on 24 January 2009, leaving a will by which he made a number of specific bequests and divided the residuary estate among his nieces and nephews. The terms of the will are not in issue.

[2] What is in dispute, however, is whether money held in the deceased’s name in an Australian Monthly Income Fund Account held with AXA Australia (“the AXA Account”) is part of the residuary estate.

[3] The applicant, who is the sister of the deceased and one of the executors of his will, contends that the deceased made a gift of the AXA Account to her before he died and that, even though the funds in the AXA Account were not formally transferred into her name, the rule in Strong v Bird[1] operates so as to entitle her to a declaration that the AXA Account does not form part of the deceased’s estate and…

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 Rutledge v Sheridan

Details

AGLC: Rutledge v Sheridan [2010] QSC 257
Case: [2010] QSC 257
Decision Date: 19 July 2010

CaseChat Overview and Summary

The case of Rutledge v Sheridan involved a dispute between the applicant, who sought to claim a gift of funds made by the deceased prior to his death, and the executors of the deceased’s estate. The central issue was whether the applicant was entitled to a declaration that the funds in question did not form part of the deceased’s estate and an order for the executors to transfer the property to her. This issue hinged on whether the gift was sufficiently completed under the rule in Strong v Bird.

The legal issue before the court was whether the deceased's intention to make an inter vivos gift, evidenced by his signing a document stating his wish to transfer the balance of a specified account to the applicant, coupled with his instruction to his attorney to arrange the transfer, constituted a completed gift. The court had to determine if the rule in Strong v Bird applied, which requires that for a gift to be valid, the donor must have done everything within their power to transfer the property and the donee must have accepted the gift. The applicant argued that the deceased had done all that was required of him, while the executors contended that the transfer was incomplete.

The court concluded that the gift was not perfected and thus did not fall within the rule in Strong v Bird. The document signed by the deceased merely expressed his intention to transfer the funds, but there was no evidence that the deceased had taken all necessary steps to effect the transfer, nor was there evidence of acceptance by the applicant. The court found that the instruction to the attorney did not amount to a transfer of the property, and the absence of a formal transfer meant the gift was not completed. Consequently, the applicant's claim was dismissed.

The court ordered that the application be dismissed and directed the parties to provide submissions on costs. This outcome means the funds in question remain part of the deceased’s estate, and the executors are not required to transfer them to the applicant.

Orders

Orders of the court

1. The application will be dismissed.

2. I will hear the parties as to costs.

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:	Rutledge v Sheridan [2010] QSC 257
PARTIES:	HELEN MARY RUTLEDGE (applicant) V MICHAEL PARTRICK SHERIDAN AND HELEN MARY RUTLEGE AS PERSONAL REPRESENTATIVES OF THE WILL OF THE LATE ANTHONY HENRY HOUGHTON, DECEASED (respondent)
FILE NO/S:	BS 13809 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	19 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	7 May 2010
JUDGE:	Daubney J
ORDER:	1. The application will be dismissed. 2. I will hear the parties as to costs.
CATCHWORDS:	GIFTS – GIFTS INTER VIVOS – IMPERFECT GIFTS – RELEVANT PRINCIPLES – RULE IN STRONG V BIRD – where the applicant contends that the deceased made a gift of funds in a specified account to her before his death even though the funds were not formally transferred into her name – where the deceased signed a document stating “I wish to transfer the whole of the balance of the above account to [the applicant]” and instructed his attorney to arrange the transfer – whether the rule in Strong v Bird operates to entitle the applicant to a declaration that the account does not form part of the deceased’s estate and an order that the executors of the deceased’s estate formally transfer the property to her Benjamin v Leicher (1998) 45 NSWLR 389, cited Blackett v Darcy (2005) 62 NSWLR 392, cited Cope v Keene (1961) 118 CLR 1, applied In Re Innes; Innes v Innes (1910) 1 Ch 188, cited In re Freeland; Jackson v Rodgers [1952] Ch 110, cited In Re Pink; Pink v Pink (1912) 1 Ch 498, cited In Re Stewart; Stewart v McLaughlin (1908) 2 Ch 251, cited Matthews v Matthews (1913) 17 CLR 8, cited Strong v Bird (1874) LR 18 Eq 315, distinguished
COUNSEL:	DA Skennar for the applicant JO McClymont for the respondent R Reed for the beneficiaries under the will
SOLICITORS:	Davidson & Sullivan for the applicant Hede Byrne & Hall for the respondent Roberts & Kane Solicitors for the beneficiaries under the will