Supreme Court New South Wales Medium Neutral Citation: Lowe v Lowe [2015] NSWSC 48 Hearing dates: 5 February 2015 Date of orders: 09 February 2015 Decision date: 09 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 1. 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. 1. 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. 2. 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. 3. By his will, the deceased appointed his sons Murray Francis Lowe and Cameron Francis Lowe and his daughter Jodie Alexandra Lowe to be the executors of his estate. By clause 3, he gave his son Murray Francis Lowe the sum of $180,000. By clause 4, he forgave debts owing at the date of his death from Cameron Francis Lowe and Jodie Alexandra Lowe. By clause 5, he gave $20,000 to each of his grandchildren. Clause 6 provided that the plaintiff may live in the deceased's property at X Angorra Road, Terrey Hills for a period of up to 18 months, and clause 7 gave her a first option of purchasing that property, at a price being the lower of the values of X Angorra Road and the plaintiff's property at XX Tiarri Avenue, Terrey Hills. 4. Clauses 8, 9 and 10 provide as follows: 8. I give my household furniture and furnishings and personal effects, subject to clause 9, to my wife DIANA MAE LOWE. 9. I give any Lowe family heirlooms, photographs and personal papers to be distributed between my Executors as they see fit. 10. After payment of all my just debts, funeral and testamentary expenses and any death estate or succession duties, I give the residue of my estate to my Executors to hold on trust to divide equally among those of my children who survive me but if any child of mine dies before me leaving children then those children shall on attaining the age of twenty one years take equally the share which their parent would otherwise have taken. 1. According to the inventory of property, the estate comprises money in bank accounts ($282,259), money on term deposit ($55,471), shares in public companies ($1,910,778), notes in companies ($30,000), X Angorra Road ($1,000,000) and a Mercedes C class motor vehicle ($60,000). An affidavit of additional assets added cash ($14,500) and another term deposit ($52,399). The evidence does not disclose any furniture, household contents or accessories, and it was submitted that this informed construction of the term "personal effects" on the basis that it indicated that it must have been intended to refer to other things, such as the bank accounts and shareholdings. However, I decline to infer that the deceased, whose estate exceeded $3 million, had no furniture, clothing, watches, accessories or appliances; in my view the explanation is that there has been incomplete disclosure of such assets, not that there are none. 2. The question for determination is the meaning of the words "personal effects" in clause 8. Their meaning is informed by the context in which they appear – in particular, they follow the words "household furniture and furnishings" in clause 8, and the Lowe family "heirlooms, photographs and personal papers" referred to in clause 9 are excepted from them, suggesting that they would otherwise be caught. 3. In Bloyce v Hodson (1903) 20 WN (NSW) 81, A.H. Simpson CJ in Eq was concerned with the phrase "all of my furniture stock-in-trade and personal effects". No relevant authority was found. His Honour construed the words "personal effects" as "something in the nature of effects which the testator was accustomed to use and enjoy personally, I think therefore the horse, buggy and harness will pass under the bequest; but not the debt due to the business, nor the monies in hand or in the home." 4. In Smith v Smith (1921) 38 WN (NSW) 255, Harvey J (as the later Chief Judge in Equity then was) considered the phrase "all his household furniture, jewellery, and personal effects." His Honour said: "I hold that the words 'personal effects' include a motor car and that the case comes within Bloyce v Hodson (20 W.N. 81)." 5. Those two decisions, of eminent equity judges of this Court, therefore hold that "personal effects" are effects that the testator uses and enjoys personally, and include a motor car for personal use. 6. What has become the leading authority on "personal effects", Joseph v Phillips [1934] AC 348; [1934] All ER 685, was a Canadian appeal to the Privy Council. The will first directed the payment of debts, then there was a specific legacy of a watch and of certain jewels, and then followed a gift of the 'personal effects' of the testator in his room, including certain articles of furniture therein, 'complete with their contents'. Then followed a disposition of the testator's interest in a business, pecuniary legacies and a residuary gift. In the desk in the room in question were passbooks relating to large sums in banks, and promissory notes. It was held that the money to which the passbooks related, and the promissory notes, were not within the expression 'personal effects', which was held (at 352) to connote "physical chattels having some personal connection with the testator such as articles of personal or domestic use or ornament, clothing furniture and so forth …". 7. Joseph v Phillips thus characterised "effects" as "physical chattels" (which excluded the money in bank accounts and promissory notes), and held – consistently with the two early NSW cases – that the "personal" element involved "some personal connection" with the testator. 8. In In re McLuckie, Perpetual Executors and Trustees Association of Australia, Ltd v Honeycombe [1943] VLR 137, Mann CJ construed a gift of "all my furniture and personal belongings" as including the testatrix's motor car (and radio sets, electric refrigerators and fireproof safe, though – perhaps curiously – not plants and gardening implements). His Honour said (at 139): "The phrase 'personal belongings', like 'personal effects' and similar phrases, has a connotation of a certain domestic and private kind and refers to articles of personal use and enjoyment by the testatrix, articles of such a kind as may not infrequently be the object of some special sentiment". Nonetheless, his Honour plainly regarded a motor vehicle for private use of the testator as within the concept, noting that that had been previously decided more than once in an apparent reference to the two NSW cases mentioned above (at 140, and see the argument of Fullagar KC at 138). 9. The passage I have quoted from the judgment of Mann CJ was cited with approval by Finlay J in Re McFetridge; Speakman v McFetridge [1950] NZLR 176, in holding that a gift of "any jewellery and all articles of personal use or ornament" did not include a piano, or a share in a motor vehicle. However, this decision was strongly influenced, in the case of the piano, by the collocated references to jewellery and personal ornament, and also, in the case of the share in the car, by the fact that it was not an article, but an interest [cf Keogh v Cornish [2010] WASC 129, [63]]. 10. In Hawkins v Perpetual Trustee Co Ltd (1960) 103 CLR 135, Fullagar J (at 140), Kitto J (at 149) and Menzies J (at 155) all held that a gift of "personal effects and articles of personal use and adornment" did not include furniture, but only articles "specially and personally used by the testator". While this was in circumstances where the will appeared to distinguish between furniture and articles of personal use, it confirms the requirement of "personal use" apparent from the early NSW cases. 11. Joseph v Phillips was followed by Sholl J in the Supreme Court of Victoria in Re McLennan, deceased [1963] VR 270. The will made bequests of "the remainder of my money" and directed that "all my personal effects" be divided between named persons. The estate comprised Commonwealth Treasury bonds, inscribed stock, mortgage debenture stock, money on loan, money in savings banks and interest, and accrued salary. In respect of "personal effects", the only authority to which his Honour was referred was Joseph v Phillips. His Honour rejected the suggestion that "personal effects" captured the whole personal estate (at 272): No doubt the word "money" can be used by a testator in a sense wide enough to embrace his whole estate: Perrin v Morgan, [1943] AC 399; [1943] 1 All ER 187; Jarman on Wills (8th ed.) at p. 1009 et seq. There is equally no doubt, however, that "effects", simpliciter, is wide enough to cover the whole personal estate, and even sometimes real estate as well: Michell v Michell (1820) 5 Madd 69, at pp 71-2; In the Goods of Curling, [1928] IR 521 at p. 523; Camfield v Gilbert (1803) 3 East 516, at pp. 523-4; Burrows, Words and Phrases, vol. II, at p. 174 et seq. Indeed, in Lord Mansfield's time, and I quote: "The natural and true meaning of real effects in common language and speech is real property; and real and personal effects are synonymous with substance--which includes everything which can be turned into money" (per Lord Mansfield, CJ, in Hogan v Jackson (1775) 1 Cowp 299, at pp. 307-8). Nevertheless, I do not think that even a lawyer would talk of "real effects" today, and certainly I think a layman would not. And notwithstanding the possible width of the word "effects", the words "personal effects" have been much more narrowly construed. 1. His Honour then referred to Joseph v Phillips, which he summarised in terms which I have largely adopted above, and continued: Jarman on Wills (8th ed.), at p. 1294, adopts the authority of that case and states briefly, with respect to the meaning of the words "personal effects", that that must of course depend on the context of the will. "But in the absence of a controlling context, it is suggested that the words may be taken to mean physical chattels having some personal connexion with the testator, such as articles of personal or domestic use or ornament, clothing, furniture, and so forth." It occurred to me at one time that "personal effects" might, like "real effects", be used in the same sense as "effects" alone--that is to say, as meaning all personal property, or all residuary personal property, and perhaps in some wills it might well be so construed. But it would seem odd to me that in the one will a man should speak in one clause of his money, or the remainder of his money, and then speak of his personal effects, if by the latter expression he meant the whole residue of his personalty. I think the same conclusion would follow if, instead of "personal effects", he were to say (as this testator has said) "all my personal effects". It would still be an odd way of using language and I cannot read this will as containing, in the disposition of personal effects, a general residuary clause. I think "personal effects" is used in this will in the same kind of general sense as is spoken of in Joseph v Phillips--that is to say, physical chattels having a personal connexion with the testator. Perhaps when on active service he was thinking of clothing, papers, baggage, and so on; or it may be that at home he had books, pictures, furniture, a motor car, or other belongings of that kind. It certainly seems a little strange that eight and a half years later when he died he was not credited by his executrix with the possession of any clothing, or any watch, jewellery, or any such belongings. But the Court has simply to deal with the estate as sworn to in the relevant affidavit and statement. 1. This decision indicates that while in the past "personal effects" might have captured the whole personal estate, that will rarely be so nowadays, especially when the words appear in the context of references to other items of personalty. It confirms that "personal effects" are physical chattels having a personal connection with the testator. 2. In Re Leury [1975] VR 601, Starke J, after referring to the definition in Joseph v Phillips and to the passage in Jarman at p 1294 to which Sholl J had referred, said (at 603): Here the words are "possessions" not "effects". But the wide meaning which may be attributed to the word "possessions" is limited by the use of the adjective "personal". In the context of this will I can see no reason for concluding that the expression "personal possessions" means anything different from the expression "personal effects". Accordingly I would define the latter expression in the sense set out above so as to exclude the testator's motor car and motor truck. 1. Accordingly, his Honour (at 605) answered the question "Q.1. Upon the true construction of the said Will what parts of the estate of the Testator are confirmed in the expression 'personal possessions'?", as follows: A.1. Physical chattels having some personal connection with the Testator such as articles of personal or domestic use or ornaments, clothing and furniture, excluding the testator's motor car and motor truck. 1. The exclusion of the motor vehicles appears to have been based on the illustrations used in Joseph v Phillips: "such as articles of personal or domestic use or ornament, clothing, furniture, and so forth", and was not followed in Re Cuthbertson [1979] TasR 93, where there was a bequest of "all articles of furniture and personal effect". At his death, the testator was building for his own pleasure a 40 foot motor yacht, which was almost complete. He also left the tools he used in building it, and a motor car which he used only for private purposes. Green CJ said (at 96): I am not persuaded that the expression with which I am concerned, whether it be read as 'articles of personal effect' or as 'personal effects', should be construed ejusdem generis with the phrase 'articles of furniture'. 1. His Honour continued (at 97): The definition of 'personal effects' which I extract from that decision (Joseph v Phillips) is that 'personal effects' are physical chattels having some personal connection with the testator". 1. And (at 99): Re Reynold's Will Trusts [1965] 3 All E.R. 686, [1966] 1 W.L.R. 19, in which a stamp collection was held to be an article of personal use; Re Collins' Settlement Trusts [1971] 1 All E.R. 283, [1971] 1 W.L.R. 37, in which a stamp collection and a coin collection were held to be included within the meaning of the expression 'personal effects'; In re Chaplin, Decd. [1950] Ch. 507, in which a motor yacht was held to be an 'article of personal use' and Re Crispin's Will Trusts [1974] 3 All E.R. 772, at p.775, [1975] Ch. 245, at p.251, in which the court expressed the view that clocks collected as a hobby were 'articles of personal use'. It follows from my conclusion as to the yacht that the tools referred to in the summons must also pass under the bequest. The motor vehicle referred to in the summons was on the evidence only used for private and personal purposes and, in my view, also falls within the terms of the bequest whichever of the alternative constructions to which I have referred is adopted. That view is consistent with the conclusions reached in the following cases in which a motor vehicle has been held to pass under the terms of the bequests indicated: Re Collins Settlement Trusts [1971] 1 All E.R. 283, [1971] 1 W.L.R. 37, 'articles of personal domestic or household use'; In re Baron Wavertree of Delamere [1933] Ch. 837: 'household effects'; In re Tormey [1935] V.L.R. 300: 'furniture and effect'; In re Liverton [1954] N.Z.L.R. 612: 'household and personal effects'; In re Howe [1908] W.N. 223: 'household furniture and effects'. In Re Leury [1975] V.R. 601 Starke J held that in the context of the will that he was considering 'personal possessions' meant 'personal effects', but held that the expression did not include the testator's motor car or his motor truck. I am inclined to follow the conclusions reached in the other cases I have cited rather than the conclusion reached in Re Leury (supra) because, with respect, it appears to me that Starke J. construed 'personal effects' more narrowly than I have by placing greater emphasis than I have upon the examples of the definition given by the Privy Council in Joseph v. Phillips [1934] AC. 348 rather than upon the definition itself. 1. I respectfully agree with his Honour's discussion of Re Leury. His Honour's decision reinforces that – subject of course to the particular will in question - 'personal effects' are physical chattels having some personal connection with the testator, and include personal motor vehicles. 2. In State Trust Corporation of Victoria v Taylor [1993] 1 VR 282, Tadgell J, in the context of a gift of "all my money in State Savings Bank and personal effect", held that the expression "personal effect" was equivalent to "personal effects" and meant physical chattels having some personal connection with the testator and not money or any entitlement to money (at 286): I treat the expression "personal effect" in the will as equivalent to "personal effects" and as meaning, therefore, physical chattels having some personal connection with the testator and not money or any entitlement to money: cf Joseph v Phillips [1934] AC 348, at 352; Re McLennan [1963] VR 270, at 273; Jarman, Treatise on Wills, 8th edition, at 1294; and Williams Law relating to Wills, 6th edition, at 527. The case of Re McLennan is of particular interest because it is one of the few cases in this country and, so far as I can find, the only reported decision of this court, in which consideration has been given to the expression "personal effects" in a will. Sholl J applied Joseph v Phillips. … . The expression "personal effects" will of course take colour from its context. 1. Although his Honour does not appear to have been referred to Re Leury, the decision endorses the authority of Re McLennan. It also confirms that money, and rights to money, are generally not within the concept of "personal effects" – because they are not "physical chattels". While it is true that there was specific reference in the will to "money in State Savings Bank", I do not read his Honour's exclusion from the scope of "personal effects" of "money or any entitlement to money" as dependent on that, but on the authority of Joseph v Phillips. 2. From this discussion of the authorities, it follows that cash on hand, shares in public companies, moneys in bank accounts, and notes in public companies are not "personal effects", because they are not "physical" property. None of the cases to which reference has been made suggest otherwise. On the other hand, motor vehicles for personal use are "personal effects": so much has been frequently held, and there is but one anomalous decision to the contrary (Re Leury). 3. The plaintiff invoked the proposition stated in Jarman on Wills (8th edition 1951, at 997) that the word "effects" will compromise the entire personal estate of a testator, unless restrained by the context within narrower limits. But Jarman continues "Where, however, such general expressions stand immediately associated with less comprehensive words, they have been sometimes restrained to articles ejusdem generis". In any event, Jarman is speaking of the term "effects", not "personal effects". The authors of Williams on Wills (8th ed 2002, 639) say that the words "Effects – personal" mean physical chattels having some personal connection with the testator – thus adopting Joseph v Phillips – while acknowledging that in a suitable context the term may include the residuary personal estate or even real property (at 640). 4. Like Sholl J, I do not think that nowadays a gift of the testator's "personal effects" is readily to be construed as a gift of all personal property. Too many cases emphasise both that the word "personal" in that context stipulates for some personal connection beyond mere ownership – typically, personal use and enjoyment – and that the "effects" are physical chattels, for the broader construction to prevail. Moreover, the context of bequests of household furniture and furnishings, heirlooms, photographs and papers (in which the term is found in the will), and the provision elsewhere of legacies, provides no support for the contention that by "personal effects" the deceased intended to deal with all his other personal property. 5. The plaintiff also referred to (NSW) Succession Act 2006, s 101, which provides that "personal effects" of an intestate means the intestate's tangible personal property except (1) property used exclusively for business purposes, (2) bank notes or coins (unless forming a collection made in pursuit of a hobby or some other non-commercial purpose), (3) property held as a pledge or other form of security, (4) property (such as gold bullion or uncut diamonds), in which the intestate has invested as a hedge against inflation or adverse currency movements, and which is not an object of household, or person, use, decoration or adornment, and (5) an interest in land (whether freehold or leasehold). As the defendants submitted, that definition is not of direct application because this is not an intestate estate. Nonetheless, it substantially accords with the views expressed in the cases to which I have referred; in particular the reference to tangible personal property is consistent with the limitation to physical property, and the exclusion of bank notes and coins is consistent with the exclusion of money. 6. The plaintiff submitted that the deceased dealt with his real estate in clauses 6 and 7, and with his personal estate in clauses 8 and 9. But there seem to me no indications that the deceased intended to deal with all his personal estate – as distinct from his household effects including furniture – in clause 8. The legacies in clauses 3 and 5, if anything, point against clause 8 being intended to deal with the whole personal estate. 7. For the foregoing reasons, I conclude that the gift of "personal effects" in clause 8 of the will includes the deceased's motor vehicle, but does not include his cash on hand, moneys in bank accounts or on term deposit, shares in public companies or notes in public companies. 8. The Court declares that upon the true construction of the will dated 14 August 2014 of Francis Alfred Lowe late of Terrey Hills deceased and in the events that have occurred, the gift to the plaintiff in clause 8 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. 9. I will hear the parties, if they so wish, as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 February 2015