Gamer v Whip - [2012] QSC 209

SUPREME COURT OF QUEENSLAND

CITATION:

Gamer v Whip [2012] QSC 209

PARTIES:

JANET GAMER and ALWYN JAMES as executors of the estate of GLENDA MARY CATHERINE PAGE deceased (applicant)

AND

CRAIG DESMOND WHIP as executor of the estate of JOAN KATHLEEN ATKINSON deceased (respondent)

FILE NO/S:

5930 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

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…

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 Gamer v Whip

Details

AGLC: Gamer v Whip [2012] QSC 209
Case: [2012] QSC 209
Decision Date: 30 July 2012

CaseChat Overview and Summary

The case before the Queensland Supreme Court involved a dispute over the interpretation and effect of a document executed by Glenda Mary Catherine Page, who was the beneficiary of a will. The document, dated 28 November 2011, was intended to bequeath Glenda's entitlement under the will of Joan Kathleen Atkinson to Janet Catherine Christiansen and Monica Julie Jensen. The central issue was whether the document should be construed as a codicil, an assignment of an equitable chose in action, or a renouncement of entitlement. The executor of Joan's will contested the validity of the document, arguing that it did not meet the legal requirements for a codicil or renunciation and could not be admitted to probate.

The court had to determine the true intention of Glenda when executing the document and whether her intention should override the technical misuse of legal language. The document was executed before a Justice of the Peace and sent to the executor, but it was unclear whether it was intended to have immediate effect or to operate upon Glenda's death. The court had to assess whether the document was a testamentary disposition, an assignment of an equitable chose in action, or perhaps something else entirely. The resolution of these issues was critical to determining the rightful beneficiaries of Joan's estate.

The court found that the document should be characterised as an assignment of Glenda's equitable interest in the estate of Joan Kathleen Atkinson to Janet and Monica. The court emphasised that the intention of the author was paramount and that the misuse of legal language did not negate the clear intent expressed in the document. The document was not a codicil and thus could not be admitted to probate under the relevant statute. The court also determined that the costs of the application were to be paid by the estate on an indemnity basis, and it granted liberty to the respondent to apply for any consequential orders.

The court's orders were that the document executed by Glenda was an assignment of her interest in Joan's estate to Janet and Monica. It clarified that the document was not a codicil and could not be admitted to probate. The court also ruled on the costs associated with the application and granted the respondent the right to apply for any further orders that might be necessary as a result of the decision.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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