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  • Unreported Judgment

Gamer v Whip

 

[2012] QSC 209

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED EX TEMPORE ON:

30 July 2012

DELIVERED AT:

Brisbane 

HEARING DATES:

30 July 2012

JUDGE:

Atkinson J

ORDERS:

  1. The true and proper effect of the document signed by GLENDA MARY CATHERINE PAGE deceased (“the deceased”) dated 28 November 2011 and headed “To the executor of the will of Joan Kathleen Atkinson deceased” (“the document”) is an assignment of the deceased’s interest in the estate of JOAN KATHLEEN ATKINSON deceased to Janet Catherine Christiansen and Monica Julie Jensen.
  2. The document is not a codicil which can be admitted to probate pursuant to s 18 of the Succession Act 1981 (Qld).
  3. The costs of an incidental to this application of the applicants and Michael Arthur Gordon Page be paid out of the estate of GLENDA MARY CATHERINE PAGE deceased on the indemnity basis as agreed or assessed.
  4. Liberty to respondent to apply for any consequential orders

CATCHWORDS:

INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – INTENTION OF AUTHOR – where beneficiary under a will executed a document to ‘bequeath’ her entitlement under the will to another – where that beneficiary was herself nearing death – where document executed before a Justice of the Peace and sent to executor – where beneficiary intended executed document to have immediate effect – whether intention of author overcomes misuse of legal language – whether document should be characterised as a codicil, renouncement or entitlement or assignment of equitable chose in action

EQUITY – ASSIGNMENTS ON EQUITY – ASSIGNMENT OF EQUITABLE CHOSE IN ACTION - where beneficiary under a will executed a document to ‘bequeath’ her entitlement under the will to another – where beneficiary intended executed document to have immediate effect – where document executed before a Justice of the Peace and sent to executor – whether document should be characterised as assignment of equitable chose in action – whether formal requirements for assignment satisfied

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – where beneficiary under a will executed a document to ‘bequeath’ her entitlement under the will to another – where beneficiary intended executed document to have immediate effect – whether document should be characterised as testamentary in nature – whether document should be characterised as a codicil

Succession Act 1981 (Qld), s 18

Property Law Act 1974 (Qld), s 199

COUNSEL:

CA Brewer for the applicants

The respondent appeared for himself

LJ Nevison for Michael Arthur Gordon Page, beneficiary

SOLICITORS:

Bywaters Timms for the applicants

The respondent appeared for himself

Dean Hardy, Solicitor, for Mr Page

HER HONOUR:  The applicants, Janet Gamer and Alwyn James, are the sisters and executors of the estate of Glenda Mary Catherine Page.  They have applied to the Court for the following orders:

 

1.That on the proper construction of the document signed by GLENDA MARY CATHERINE PAGE deceased dated 28 November 2011 and headed ‘To the Executor of the will of Joan Kathleen Atkinson deceased’ (the document), Ms Page intended to assign her interest in the estate of JOAN KATHLEEN ATKINSON deceased to Janet Catherine Christiansen and Monica Julie Jensen.

 

2.A declaration that the document is not a codicil pursuant to s 18 of the Succession Act 1981.

 

The document which is headed "To the executor of the will of Joan Kathleen Atkinson deceased" was signed by Ms Page and witnessed by a Justice of the Peace on 28 November 2011.  It provides as follows:

 

"I Glenda Mary Catherine Page being a beneficiary under the will of Joan Kathleen Atkinson relinquish my beneficial entitlements under the will and bequeath the same in equal shares to Janet Catherine Christiansen and Monica Julie Jensen, who are also beneficiaries under the said will."

 

I am indebted to Ms Brewer, who appears for the applicant, for a brief chronology which sets the scene for this application.  Ms Atkinson died on 26 October 2011.  She left a will in quite detailed terms appointing Craig Desmond Whip as her executor and trustee.  That will was admitted to probate on the 10 February 2012.  In that will, she bequeathed a specific percentage of her estate to Ms Page and other parts to Janet Christiansen and Monica Jensen.

 

Ms Page found out that she was a beneficiary of Ms Atkinson's estate on about 26 or 27 November 2011.  At that time she was very ill herself and asked her friend Mr White, who was a JP, to attend at her house to witness the document, to which I have referred, for her.  It was, as I have already said, executed on 28 November 2011 and posted to Mr Whip, the executor for Ms Atkinson's estate, and received by him as he confirmed today in court.  On 5 December 2011, he emailed a copy of the document to his solicitors, and on 9 December 2011 he gave the original of the document to his solicitors.

 

Various statements have been made by witnesses as to Ms Page's intention at the time, to which I should refer if it is not possible to tell from examining the terms of the document itself how it should be interpreted.  On 17 December 2011 Ms Page died from the illness from which she had been suffering.  As I have already said, probate of Ms Atkinson's will had been granted on 10 February 2012.  Probate on Ms Page's will was granted on 19 March 2012.

 

The question remains as to what the document executed by Ms Page should be understood to mean.  The executors of Ms Page's estate quite properly brought the matter to court for determination and submitted that there are three possible effects of the document: first, that it is an informal codicil to Ms Page's will, pursuant to s 18 of the Succession Act 1981 (Qld); secondly, that it is a disclaimer of Ms Page's entitlement under Ms Atkinson's will; or thirdly, that the document is an assignment of Ms Page's interest in Ms Atkinson's estate.

 

The effective respondent to the application is the stepson of Ms Page, who is a minor beneficiary under her will but who wishes to seek further provision, and as such has an interest in her estate being maximised.  Both counsel for the effective parties are extremely experienced in the area of estates and put forward what they submitted to be the appropriate interpretation of the document.

 

The difficulty in the interpretation of the document arises from the use of words by Ms Page without legal advice which on their face, if used alone, would suggest a particular interpretation.  However, when the document is read as a whole, as it should be, it appears to me that the interpretation becomes reasonably clear.

 

Both counsel agree that it could not be considered to be an informal codicil to Ms Page's will.  Section 18 of the Succession Act 1981 (Qld) gives the Court wide power to dispense with the execution requirements for a will or an alteration or a revocation and applies to any document, or indeed any part of a document, that purports to state the testamentary intentions of a deceased person and has not been executed as the Succession Act otherwise requires.

 

However, the reason why this broad power is not apt to make this document a codicil to the will is that the document does not purport to give effect to any testamentary intention of Ms Page.  It is true that the word 'bequeath' is used, but it is not used in the sense that she intends the document to operate on her death.  Indeed, her intention from the document and from her behaviour in sending it to the executor of Ms Atkinson's estate is that it was to operate with regard to her share of Ms Atkinson's estate, which she wished to be given to Ms Christiansen and Ms Jensen, rather than receive the benefit of it herself.

 

There is nothing in the document to suggest, other than incorrect use of the word 'bequeath', that it is meant to be a testamentary document, and I am in those circumstances prepared to declare that it does not operate as a codicil to Ms Page's will.

 

However, counsel disagree in their submissions as to whether or not it should be regarded as a disclaimer of Ms Page's entitlement or as an assignment of her interest in Ms Atkinson's estate.  Again, there is a word used in the document which might, at first blush, suggest that it is a disclaimer - in that she says that she relinquishes her beneficial entitlements under the will.  However, it is clear when one goes on to read the rest of the document that in fact she intends to assign her beneficial entitlement, that is to relinquish it by assigning it to Ms Christiansen and Ms Jensen.  She can only assign it by, of course, in the first place, receiving it and assigning the chose in action, being the right to receive it, to Ms Christianson and Ms Jensen.

 

An equitable chose in action is now assignable pursuant to s 199 of the Property Law Act 1974 (Qld), and Ms Page has done everything that is required to assign her interest in the estate to Ms Christiansen and Ms Jensen.  She has put it in writing, which she had witnessed by a JP.  She has sent it to the executor and so given express notice to the person from whom the assignor would have been entitled to claim the thing in action.

 

It is, therefore, effectual in law to transfer the right to receive that part of the estate to Ms Christiansen and Ms Jensen, and gives good discharge to the executor of Ms Atkinson's estate for that to occur.  I am not persuaded that it could be regarded as a renunciation because it was clear that she intended that her share go to other named people, so she has not in fact renounced it, but rather accepted it, and in her words, relinquished it, by assigning it.

 

In those circumstances I am prepared to declare that on a proper construction of the document signed by Glenda Page dated 28 November 2011 and headed "To the executor of the will of Joan Kathleen Atkinson deceased", Ms Page intended to assign her interest in the estate of Joan Kathleen Atkinson (deceased) to Janet Catherine Christiansen and Monica Julie Jensen, and I so order.

 

...

 

HER HONOUR:  Liberty to the respondent to apply for any consequential orders.  I make the order as per draft as amended, which I will initial and place with the file.

 

...

 

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Editorial Notes

  • Published Case Name:

    Gamer v Whip

  • Shortened Case Name:

    Gamer v Whip

  • MNC:

    [2012] QSC 209

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    30 Jul 2012

Litigation History

No Litigation History

Appeal Status

No Status