SUPREME COURT OF QUEENSLAND - Barrister

SUPREME COURT OF QUEENSLAND

CITATION: Gamer v Whip [2012] QSC 209
PARTIES:
JANET GAMER and ALWYN JAMES as executors of
FILE NO/S: the estate of GLENDA MARY CATHERINE PAGE
DIVISION: deceased (applicant)
PROCEEDING:
ORIGINATING AND
COURT:
DELIVERED EX CRAIG DESMOND WHIP as executor of the estate of
TEMPORE ON: JOAN KATHLEEN ATKINSON deceased (respondent)
DELIVERED AT:
HEARING 5930 of 2012
DATES:
JUDGE: Trial Division
ORDERS:
Application
CATCHWORDS:
Supreme Court at Brisbane

30 July 2012

Brisbane

30 July 2012

Atkinson J

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

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

COUNSEL: another – where that beneficiary was herself nearing death – 1
SOLICITORS: where document executed before a Justice of the Peace and 10
sent to executor – where beneficiary intended executed 20
document to have immediate effect – whether intention of 30
author overcomes misuse of legal language – whether 40
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

CA Brewer for the applicants
The respondent appeared for himself
LJ Nevison for Michael Arthur Gordon Page, beneficiary

Bywaters Timms for the applicants
The respondent appeared for himself
Dean Hardy, Solicitor, for Mr Page

50

1-2 ORDER 60

HER HONOUR: The applicants, Janet Gamer and Alwyn James, are 1
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 10
GLENDA MARY CATHERINE PAGE deceased dated 28 November 20
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 30
to s 18 of the Succession Act 1981. 40
50
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.

1-3 ORDER 60

Ms Atkinson died on 26 October 2011. She left a will in quite 1
detailed terms appointing Craig Desmond Whip as her executor 10
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 20
estate on about 26 or 27 November 2011. At that time she was 30
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 40
intention at the time, to which I should refer if it is not 50
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

1-4 ORDER 60



indeed any part of a document, that purports to state the 1
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 10
this document a codicil to the will is that the document does 20
not purport to give effect to any testamentary intention of 30
Ms Page. It is true that the word 'bequeath' is used, but it 40
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 50
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

1-6 ORDER 60

when one goes on to read the rest of the document that in fact 1
she intends to assign her beneficial entitlement, that is to 10
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 20
s 199 of the Property Law Act 1974 (Qld), and Ms Page has done 30
everything that is required to assign her interest in the 40
estate to Ms Christiansen and Ms Jensen. She has put it in 50
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

1-7 ORDER 60