Floyd v Floyd[2017] QDC 198

DISTRICT COURT OF QUEENSLAND

1. [1]
   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]

2. [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]

3. [3]
   The Will takes the form of a pre-printed “Will kit” document, with various blank spaces that have been completed.

4. [4]
   There are some ambiguities apparent, regarding the meaning and effect of the Will, in respect of:

1. (a)
   the identity of the beneficiary of the gift of “furniture – car – incidentals”; and

2. (b)
   whether the gift of “HOUSE & CASH ASSETS” includes the Deceased’s shareholdings.

The Estate

5. [5]
   The Deceased’s estate comprised, at her death:

6. [6]
   The furniture and personal effects owned by the Deceased at her death are listed at paragraph 11 of the Applicant’s affidavit. Apart from furniture, the only personal effects are china, two gold rings and costume jewellery.

The Scheme of the Will

7. [7]
   The dispositive provisions of the Will are contained in two clauses:

1. (a)
   a clause headed “Gifts” which provides for gifts of various chattels; and

2. (b)
   a clause headed “Residuary estate”, which commences:

“I give the residue of my estate to: 1/3 HOUSE & CASH ASSETS – Brian F.W. Floyd  2/3 HOUSE & CASH ASSETS – ”

and which then names eight beneficiaries.

8. [8]
   There is an ambiguity in the clause headed “GIFTS”, in that the beneficiary of the gift of “FURNITURE – CAR – INCIDENTALS” to “B. Floyd” may refer to any of 3 Floyds named in the Will and having the first initial “B”. Those 3 persons are the Deceased’s brother, that is to say the Applicant (Brian Francis William Floyd), the Deceased’s nephew, that is to say the Applicant’s son (Bradley Thomas Floyd), and the Deceased’s grandnephew, Brayden T Floyd. The clause provides:

GIFTS

I hereby make the following gifts:

JEWELRY – Brittany Louise Marler

WOODEN CHINA CABINET AND CONTENTS – Brittany Louise Marler

FURNITURE – CAR – INCIDENTALS – to be kept or distributed by B. Floyd

9. [9]
   There is a further ambiguity in the clause headed “RESIDUARY ESTATE”, arising from the words “CASH ASSETS”. It provides:

RESIDUARY ESTATE

I give the residue of my estate to:

1/3 HOUSE & CASH ASSETS – Brian F. W. Floyd

2/3 HOUSE & CASH ASSETS – Stephanie L. Snook, 14.2.91 – Jackson P. Snook, 11.11.92 – Brittany L. Marler, 27.1.93 – Zoe A. Marler, 26.1.95 – Brayden T. Floyd, 9.1.99 – Jamie-Lee Floyd, 21.2.04 – Lachlan G. Floyd 24.3.00 – Chloe M. Floyd, 8.7.02.

10. [10]
    Do “CASH ASSETS” include the Deceased’s shareholdings (or the proceeds of sale of those shareholdings), or only the cash at bank? Those shareholdings have a value of approximately $11,734. The shares were not expressly referred to in the Will.

The Beneficiaries

11. [11]
    The Deceased had three siblings:^[3]

1. (a)
   the Applicant;

2. (b)
   Leslie Lavinia Danaher (“Leslie”), who died on 20 December 1999; and

3. (c)
   Thomas Raymond Floyd (“Thomas”), who died on 6 September 2002.

12. [12]
    With the exception of the Deceased’s brother, that is to say the Applicant (Brian Francis William Floyd), and the Deceased’s nephew, that is to say the Applicant’s son (Bradley Thomas Floyd), the beneficiaries named in the two clauses are all grandnieces and grandnephews of the Deceased.

13. [13]
    Bradley Thomas Floyd was born on 2 June 1969. The dates of birth of all of the beneficiaries stated in the Will are correct, except that Brayden T. Floyd was born on 8 January 1999, not 9 January 1999. It follows that each of the 3 relevant persons who could be described as “B. Floyd” were alive when the Will was made. Significantly, Brayden was not then 10 years of age, too young to obtain a driver licence for a motor car. Bradley was old enough.

Relevant Law

14. [14]
    The principles governing the construction of wills (and codicils) were summarised in Ashton v Ashton,^[4] by Boddice J:^[5]

“[13] The first question involves the proper construction of the Codicil.  The principles applicable to that question were not in dispute at the hearing.  The Will and Codicil are to be constructed [sic] having regard to their words.  If the usual meaning of those words is clear, they will be given that construction.  If not, the Court may have regard to extrinsic evidence as allowed by the rules of construction applied by the Court and s 33C of the Succession Act 1981 (Qld).^[6]

[14] In undertaking this determination, the Will and Codicil:

1. (a)
   must be construed as a whole to ascertain the meaning of the instrument taken as a whole, in order to give effect, if it be possible to do so, to the intention of the framer of it;^[7]

2. (b)
   should not be construed in a strictly technical or legalistic sense and its construction should be sensitive to the factual context of ordinary lives and circumstances.^[8]

[15] One of the rules of construction is to allow evidence under the ‘armchair rule’.  This rule allows the Court to put itself in the position of the testator and to consider all material facts and circumstances known to the testator with reference to which he or she is taken to have used words in the Will and Codicil and then to declare what was the testator’s intention evidenced by the words used with reference to those facts and circumstances.^[9]  The testator’s language is to be read in the sense the testator appears to have attached to the expressions used, unless a rule of law gives them some fixed operation.^[10]”

15. [15]
    Section 33C of the Succession Act 1981 (Qld) provides:

33C Use of evidence to interpret a will

1. (1)
   In a proceeding to interpret a will, evidence, including evidence of the testator’s intention, is admissible to help in the interpretation of the language used in the will if the language makes the will or part of it—

1. (a)
   meaningless; or

2. (b)
   ambiguous on the face of the will; or

3. (c)
   ambiguous in the light of surrounding circumstances.

2. (2)
   However, evidence of the testator’s intention is not admissible to establish any of the circumstances mentioned in subsection (1)(c).

3. (3)
   This section does not prevent the admission of evidence that would otherwise be admissible in a proceeding to interpret a will.

16. [16]
    That the Court must, in construing a Will, give effect to the intention of the testator, which is gathered from reading the Will as a whole and giving the words the meaning which, having regard to the terms of the Will, the testator intended: Perrin v Morgan.^[11]

17. [17]
    There is a presumption against intestacy, namely that the will should, if possible, on a fair and reasonable construction, be construed so as to lead to a testacy rather than an intestacy or partial intestacy: Fell v Fell.^[12]

18. [18]
    Where a testator has made a Will without professional assistance, the expressions used in the Will should not be construed literally and technically: Re Taylor; Taylor v Tweedie.^[13]

19. [19]
    In Parnell v Hinckley,^[14] consideration was given to the proper construction of a gift of “cash and investments”.  Master Newnes observed, identifying the scope of that gift, that:

1. (a)
   In Re Cadogan,^[15] a gift of “the money of which I am possessed” was construed as passing all of the testator’s personal estate.

2. (b)
   In Martin v Rumble,^[16] the testator, among other things, devised certain real property to two named beneficiaries and provided, by cl 3(b)(i) of the Will, that “any cash which I stand possessed at the date of my death [is] to be divided equally between” certain named persons.  There was no provision dealing with the residuary estate.  Before his death the testator entered into a contract to sell the real property in question but died before its completion.  The contract settled after his death.  It was common ground that the devise of the real property had failed by ademption and the question arose whether the proceeds of the sale of the property fell to be disposed of under cl 3(b)(i) or on a partial intestacy.  Ashley J held that the money constituted part of the personal estate under cl 3(b)(i).  His Honour considered that, in the circumstances, “cash” should be equated with “money” in the broad sense of the latter.  In reaching that conclusion, Ashley J took into account, among other things, the presumption against intestacy, the disclosed intention of the testator to dispose of the whole of his estate by his Will, the absence of any residuary disposition, the fact that cl 3(b)(i) was the only clause making a non-specific disposition of property, and the use of the word “any” preceding “cash”.

Application of the Principles

20. [20]
    The evidence of the discussions that the Deceased had with the Applicant on several occasions in February 2009 regarding the effect of the Will that she had made is admissible as extrinsic evidence, pursuant to s 33C(1)(b) to reduce the ambiguity arising from the words “B. Floyd” and the ambiguity arising from the words “CASH ASSETS.”

21. [21]
    The Deceased’s intention appears sufficiently clear, since:

1. (a)
   the gift of “Mums table” is to “Bradley Thomas Floyd”, whilst the gift of “Furniture – car – incidentals” is stated to be “kept or distributed by B. Floyd”; and

2. (b)
   the Deceased told the Applicant that the Applicant’s son Bradley would be receiving her wooden table, and that the Applicant would be receiving the rest of her furniture and her car,^[17]

that the gift of “Furniture – car – incidentals” should be construed as a gift to the Applicant.  It is not likely that the Deceased intended Brayden to receive the car, having regard to his age.  It is unlikely that the Deceased intended Brayden to have the discretion to keep or distribute the “Furniture – car – incidentals.”  It is more probably that she intended responsibility to be for her executor, the applicant.

22. [22]
    I am satisfied that the Deceased intended that by the clause “RESIDUARY ESTATE” she would dispose of the remainder of her estate, rather than leaving a partial intestacy. Accordingly, a broad construction of “CASH ASSETS” is warranted so as to include the Deceased’s shareholdings.

23. [23]
    This application has been necessary because of the ambiguities apparent on the face of the Will. The Applicant’s costs should be paid from the estate, on the indemnity basis.