Arnott v Leong

1. On 21 April 2020, Mr Giuseppe Pellegrino (the deceased) passed away, leaving two children, a daughter, Theresa Johnson (the applicant) and a son, Angelo Pellegrino. Prior to the deceased’s death, there had been a falling out in the family. At the time of the deceased’s death, the relationship had completely broken down, and Angelo Pellegrino was estranged from both his sister and from the deceased.

2. Five years earlier, on 9 December 2015, the deceased had made a will (the Will), which named both the applicant and Angelo Pellegrino as executors of his estate (the Estate) if his wife did not survive him. As Angelo Pellegrino did not respond to any correspondence concerning the Will, a grant of probate was made to the applicant.

3. The Will provided that if the deceased’s wife did not survive him, the whole of the Estate was to be given “in equal shares” to the applicant and Angelo Pellegrino. The Will further provided that if the applicant or Angelo Pellegrino did not survive the deceased, the respective children of the applicant or Angelo Pellegrino were to receive their parent’s share of the Estate.

4. Since the grant of probate, the applicant has made numerous attempts to distribute Angelo Pellegrino’s share of the estate to him. As outlined further below, each of these attempts have been unsuccessful.

5. In her initial application, the applicant sought a declaration that Angelo Pellegrino had disclaimed his share of the Estate. The applicant also sought a declaration that, following that disclaimer, Angelo Pellegrino’s share of the Estate be distributed to his daughter, or judicial advice to this effect.

6. This application first came before me on 24 July 2025. On 1 August 2025, the Court was reconvened to enable the applicant to address the following questions: (a) Whether the application should be personally served on Angelo Pellegrino before any declarations are made; (b) Whether, if it is accepted that Angelo Pellegrino has disclaimed his share of the Estate, the Court should nonetheless decline to grant the judicial advice sought concerning the proper distribution of the estate in the absence of a memorandum of opinion of counsel addressing these issues: see In the Estate of Margaret Anne Cervo (administrator pendente lite appointed) [2024] ACTSC 253; 21 ACTLR 226 at [24] – [29]; (c) Whether the proceedings should be adjourned to enable (a) and (b) above to be addressed.

7. At the hearing on 1 August 2025, counsel for the applicant indicated that declarations were no longer sought, and that the applicant only pressed an application for judicial advice pursuant to s 63 of the Trustee Act 1925 (ACT). The proceedings were adjourned to enable the applicant to provide a memorandum of opinion of counsel or submissions on the issues for which advice was sought: The Estate of Cervo at [24] – [29].

8. On 16 August 2025, the Court was provided with further submissions as envisaged in The Estate of Cervo. In those submissions, the applicant expanded upon the submissions previously made that Angelo Pellegrino’s behaviour amounts to a disclaimer.

9. In respect of the issue for which the proceedings were adjourned, namely, the legal effect of the disclaimer, the applicant’s position was altered. On the initial application, the applicant had sought orders that Angelo Pellegrino’s share of the Estate be distributed to his daughter. However, having reviewed the case law, in the further submissions, the applicant contended that the disclaimer did not effect the vesting of property in a descendent of a person who had disclaimed his or her share of the Estate. Accordingly, the applicant submitted that the Court should provide judicial advice that the deceased, through the Will, intended for his estate to be shared in equal parts between his surviving children. The applicant further submitted that, as that gift has failed due to Angelo Pellegrino’s disclaimer, Angelo Pellegrino’s share should revert to her. Background

The deceased’s relationship with the applicant and Angelo Pellegrino

10. In her affidavit, the applicant described her parents’ relationship as “volatile”. She stated that the deceased inflicted physical abuse upon her mother, which was upsetting and frightening to witness. The applicant said that Angelo Pellegrino had a fraught relationship with both parents, which further deteriorated after he married a woman that he met whilst travelling overseas.

11. The deceased was admitted into a nursing home in 2017. At this time, he had Alzheimer’s Disease and congestive heart failure. The deceased’s wife was admitted to the same nursing home a short time later. The applicant is aware that Angelo Pellegrino’s wife and daughter visited the deceased and his wife in the nursing home. However, the applicant is unaware of Angelo Pellegrino ever having visited his parents whilst they were in the nursing home.

12. The deceased’s wife died in 2018 following a bout of pneumonia. The deceased passed away on 21 April 2020. Angelo Pellegrino did not attend the deceased’s funeral, nor did his wife or daughter.

The Will

13. In his will, the deceased appointed his wife as his executor, and left the whole of his estate to his wife, provided she survived him by thirty days. The Will provides that if the deceased’s wife did not survive him (as has occurred), the applicant and Angelo Pellegrino were to be appointed as executors. In this event, the Will further provides: … I give the whole of my estate in equal shares to such of [the applicant and Angelo Pellegrino] who survive me by thirty days, but I direct that if one or more of these does not so survive me by thirty days and leaves children who do survive me by thirty days, then such children shall take in equal parts the share the parent would have taken.

14. After the deceased’s passing, the applicant attempted to contact Angelo Pellegrino in regard to the grant of probate. By September 2020, at least four letters had been sent to Angelo Pellegrino; a process server had been engaged to personally serve him; and a number of telephone calls were made to him. All attempts to contact him were unsuccessful. When the process server attended Angelo Pellegrino’s home, an unseen female voice said “go away, we don’t want anything from it”. Angelo Pellegrino did not answer any of the calls, and did not respond to any of the letters or messages that were left.

15. A grant of probate was made to the applicant on 10 November 2020. Given the lack of response on the part of Angelo Pellegrino, leave was reserved for him to also apply for a grant of probate.

16. Following the grant of probate, the applicant made the following attempts to distribute Angelo Pellegrino’s share of the Estate to him: (a) In February and April 2021, letters were sent by the applicant’s estate lawyer to Angelo Pellegrino advising him that probate had been granted, and requesting his payment details so his distribution of the estate could be paid. No response was received. (b) On 13 April 2021, a Notice of Intended Distribution of Estate was published in the Canberra Times. No response was received. (c) In May 2022, the applicant attended Angelo Pellegrino’s house, where she met with him and his wife. Angelo Pellegrino came to the door, said words to the effect of “your parents are delinquents” and then left. The applicant then told Angelo Pellegrino’s wife that she wanted to give him money from their parents’ estate. His wife replied “There is no money. If there is, put the money in the letterbox in cash”. The applicant told his wife “if no one claims the money it will likely go to the government”. His wife replied “good, give it to the government, you are nobody”. (d) On 13 December 2022, a letter was sent by the applicant’s estate lawyer to Angelo Pellegrino advising him that they had tried to contact him a number of times about his entitlement. The letter confirmed that if Angelo Pellegrino did not respond, the applicant would seek an order from the Court as to the correct disposition of the funds. (e) On 5 December 2023, the applicant sent a letter to Angelo Pellegrino which enclosed a personal cheque for his share of the estate. The envelope was returned to the applicant, marked with “refused to sign for letter” and “R.T.S” (return to sender).

17. The Estate has now been fully administered apart from the gift to Angelo Pellegrino.

Determination

Judicial advice

18. The applicant seeks advice pursuant to s 63 of the Trustee Act, which provides that: A trustee may apply to the Supreme Court for an opinion, advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.

19. Section 4(1)(b) of the Trustee Act provides that a trust includes the duties of a legal representative of a dead person. Accordingly, as the administrator of the Estate, the applicant is a trustee for the purposes of the Trustee Act.

20. The nature of an application by a trustee for judicial advice is described in the judgment of the plurality of the High Court in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; 237 CLR 66 at [54] - [96].

21. The principles relevant to an application for judicial advice were helpfully summarised by McWilliam AsJ (as her Honour then was) in In the Estate of Stanley George Mizon (deceased) [2021] ACTSC 240 at [13] – [14] as follows: A number of points identified by the plurality of the High Court in Macedonian Church are not relevant to the context of the present application. Those that were material to the present application are as follows: (a) There are no express words limiting the statutory power to give advice, and no implied limitations precluding the Court from giving advice. The court is not limited to advice only in “non-adversarial proceedings” (although that was the nature of the ex parte application made by the Trustee here). (b) The only jurisdictional bar is that the applicant must point to the existence of a question with respect to (relevantly here) the administration of trust property. (c) The Court’s discretion to provide judicial advice is confined only by the subject matter, scope and purpose of the legislation. No discretionary factors are more significant or controlling than others. (d) The procedure is summary in the sense it permits a trustee to obtain the opinion without commencing a suit for the general administration of a trust. (e) The power operates as an exception to the Court’s ordinary function of deciding disputes between competing litigants and affords a facility for giving advice to a trustee that is “private”, in the sense that the primary function is to give personal protection to the trustee. Others may participate in the application because they may be affected by the advice. However, they are not, strictly speaking, “parties” to the proceeding (f) The application of the section will vary with the type of trust involved. Each application depends on its own facts and is essentially a matter for the discretion of the judge who hears it. The sole purpose in giving advice is to determine what should be done in the best interests of the trust estate: Dulhunty v Dulhunty [2010] NSWSC 1465 at [44]. Service

22. The applicant engaged a process server to serve copies of the present application on Angelo Pellegrino and his daughter. Personal service was not effected by the process server. When the process server attended the home where Angelo Pellegrino, his wife and his daughter lived, she received no answer at the front door. When the process server was walking away, she saw a female through the window of the house, who yelled “Go away” when the process server re-approached. The process server placed a calling card in a sealed, confidential envelope at Angelo Pellegrino’s house.

23. Another process server attended the house the next day and similarly received no answer at the front door. The process server noted that she could hear footsteps towards the front door, but when she called out “hello” she received no response. The process server left the relevant documents in an envelope at the front door.

24. As noted above, the original application sought a declaration that Angelo Pellegrino had disclaimed his share of the Estate and consequent declarations concerning the distribution of the Estate.

25. Given the final nature of a declaration (see IC Framework Services Pty Ltd v Moir (No 2) [2020] ACTCA 44; 15 ACTLR 207 at [20]-[21], [27]) at the hearing on 1 August 2025, I indicated that I was not prepared to grant declaratory relief without the making of a further attempt of personal service of Angelo Pellegrino and his daughter, or an affidavit which demonstrated that any future attempt at personal service would be futile.

26. In these circumstances, counsel for the applicant indicated that the application for declarations was not pressed, and instead pressed only the application for judicial advice. Personal service (or indeed, any service) of an application for judicial advice on potentially affected parties is not required: s 63(4) of the Trustee Act. However, prior to conveying or distributing any property in accordance with the opinion, advice or direction, the trustee must “give notice to any person whose rights as beneficiary may be prejudiced by the conveyance or distribution”: s 63(5) of the Trustee Act; see similarly Estate of Jakov Pavic [2024] ACTSC 414 at [52].

Should judicial advice be provided?

27. The power conferred by s 63 of the Trustee Act is discretionary. The Court is not bound to give judicial advice merely because a trustee has applied for it: Application of Perpetual Trustee Company Limited [2003] NSWSC 1185 at [8]–[9].

28. The applicant has sufficiently identified two questions that are of importance for the administration of the Estate: first, whether Angelo Pellegrino has disclaimed his share of the Estate?; and second, if he has disclaimed his share of the Estate, how should his share of the Estate be administered?

29. As trustee of the Estate, the applicant is dutybound to administer the Estate by the very nature of her office: Gonzales v Claridades [2023] NSWSC 508 at [72]. It is appropriate to provide the advice so as to resolve doubt about the proper administration of the Estate and to provide the applicant with protection in the administration of the Estate: Macedonian Orthodox Community Church at [196]–[197].

Has Angelo Pellegrino disclaimed his share of the Estate?

30. As Peden J observed in Napoli v Napoli and Wood as executors and trustees for the estate of the late Mario Robert Napoli [2023] NSWSC 606 at [39]: A beneficiary of a trust may disclaim a beneficial interest in the form of a gift on its coming to their knowledge, and such disclaimer operates retrospectively: Commissioner of Taxation v Ramsden [2005] FCAFC 39 at [30] (Lee, Merkel and Hely JJ). A disclaimer need not be effected by a formal deed; any evidence of actual dissent is sufficient: Federal Commissioner of Taxation v Cornell (1947) 73 CLR 394 at 401 – 402 (Latham CJ).

31. The principles to be applied when determining whether a beneficiary of an estate has disclaimed their interest are helpfully summarised by Kelly J in Jensen v Mlynarik [2024] QSC 19 at [17] – [23]. At [17], his Honour held: Fundamentally, the disclaimer of a gift involves a refusal to accept that an interest has been bequeathed. The disclaimer must be made with knowledge of the gift and an intention to disclaim it. Unless and until a gift is disclaimed, the law will presume that a donee assents to the gift. The presumption has been described as a strong one and the onus rests on an applicant to prove the disclaimer. However, the law in this area is concerned with matters of substance, not form, and it has been observed that “the law is certainly not so absurd as to force a man to take an estate against his will”. (emphasis in original)

32. At [18], his Honour continued (citing Professor Neville Crago in ‘Principles of the Disclaimer of Gifts’ (1999) 28(1) University of Western Australia Law Review 65 at 79): … there is no generally applicable form of disclaimer required by the law. A disclaimer may be made by any means effective for the purpose; by deed or other writing, such as a letter; by word of mouth; or by conduct. The essential feature is not the form but the substance, namely an effective communication, by whatever means, rejecting ownership of the subject-matter of the proffered gift that is both timely and peremptory.

33. At [19], his Honour observed that Professor Crago’s statement of the requirements for disclaimer of a gift to be effective had been distilled by Mullins J in Re Bissett [2016] 1 Qd R 211 at 219 [3] as follows: (a) the disclaimer must be timely in that it must occur before any act constituting assent to a gift (at 76); (b) the disclaimer must be peremptory, in that it must constitute an absolute rejection of the gift (at 78); and, (c) the disclaimer must be communicated to the donor or the donor’s agent (at 79).

34. His Honour noted that whilst in some cases “merely ignoring inquiries or letters from a trustee might fall short of the definitive conduct required to establish a disclaimer”, in other cases “a failure to act or respond may constitute a disclaimer where continuing inaction and silence necessarily implies, or is only consistent with, the refusal of a gift”: Jensen at [23], citing Public Trustee v Attorney General for New South Wales (Supreme Court of New South Wales, Powell J, 7 September 1981) at 8 – 9. For this reason, each case must depend on its own particular facts, bearing in mind that the Court must be “concerned with matters of substance and not form”: Jensen at [23].

35. The applicant in Jensen was the executor of his late mother’s will. The respondent (the son of the deceased, and brother of the applicant) was named as one of the beneficiaries in that will. The respondent was estranged from his mother at the time of her death. The applicant sent various letters to the respondent in 2019 and 2023. The respondent did not respond to any of the letters, and made no response to a letter that was personally served on him which enclosed an Originating Application seeking a declaration that he had disclaimed the gift provided to him under the will.

36. In granting the relief sought, Kelly J held (at [26] – [27]): From 13 October 2023, the respondent was not only aware of the amount of the gift made to him under the will but also that there were no conditions attaching to the gift and that the gift could be paid to him immediately. The respondent made no contact with the applicant’s solicitors to claim the gift. The respondent acted in that manner with knowledge that his failure to make contact was to be relied upon as a basis for a submission to this Court that, by inference, he had disclaimed the gift. The respondent was then served with court documents which revealed to him that this Court was in fact being moved for relief based upon his continuing inaction. The facts of this case did not involve a mere failure to respond. Rather, the facts of this case included circumstances from which the failure to respond could only be interpreted as a disclaimer. The relevant circumstances were the long history of familial estrangement, the relevant correspondence having come to the actual attention of the respondent and that correspondence having advised the respondent, in the clearest of terms, that his continuing inaction was intended to be, and was being relied upon as evidencing rejection of the gift. In those circumstances, the respondent elected to ignore the correspondence, and took none of the steps outlined in the correspondence. That conduct, engaged in with knowledge of the gift and how the conduct would be interpreted and relied upon, amounted to a peremptory, dogmatic refusal of the gift. In the present case, the only inference able to be drawn from the respondent’s continuing inaction and failure to respond, is that he has refused to accept the interest bequeathed to him.

37. The application of the principles stated in Jensen compels the same conclusion in the present application. Angelo Pellegrino has been provided with clear notice of the gift. There has been no conduct by Angelo Pellegrino which could constitute an assent to the gift. As in Jensen, he was estranged from his parents at the time of their deaths. He has refused to speak to or communicate with the applicant, or the estate firm which represents her. He has failed to respond to any of the letters that were sent to him and has returned the cheque that was sent to him, marked with “refused to sign” and “return to sender”. He has made no response to the present application, which was left by the process server at his place of residence.

38. In these circumstances, judicial advice should be given that, on the evidence currently before the Court, Angelo Pellegrino has disclaimed his share of the Estate.

The legal consequences of the disclaimer

39. The effect of a disclaimer is to divest the person disclaiming of the right to call upon the personal representative to execute the trust in his or her favour in respect of a gift in a will: Probert v Commissioner of State Taxation (1998) 72 SASR 48 at 55; LexisNexis Australia, Halsbury’s Laws of Australia, Rules on Disclaimer of Gifts (online at 15 September 2025) [395-1205]. The disclaimer does not of itself vest property or an interest in property in any person: Probert at 55.

40. At common law, where a deceased dies intestate, the disclaimed interest of the beneficiary “devolves upon other members of that beneficiary class as if the disqualified or disclaiming person were non-existent”: Gerald Peter Bullen and Phillip Leslie Wyatt as administrators of the estate of Barry Robert Bullen v Bullen [2024] WASC 445 at [39], citing Jemal David Zagami (In his Capacity as Administrator of the Deceased’s Estate) v James [2017] WASC 292 at [20]; Re Scott (dec’d): Widdows v Friends of the Clergy Corp (1975) 2 All ER 1033; and In the Estate of Simmons (deceased) (1990) 56 SASR 1 at 14. This position is altered by statute in some jurisdictions: see for example, s 139 of the Succession Act 2006 (NSW); LexisNexis Australia, Succession Law and Practice NSW (at Service 123) [139.5.2].

41. The position is different where a beneficiary disclaims an interest under a will. Where there is a will, the legal effect of the disclaimer is a question of the proper construction of the will: what did the testator intend to occur in the event of disclaimer?

42. This issue was considered by Hamilton J in Arnott v Leong [2009] NSWSC 187 and by Mullins J in Re Gibson (deceased) [2012] QSC 183.

43. In Arnott, the deceased had left a will which contained the following residuary clause: I GIVE the residue of my Estate to SUE AUSTIN AND STEPHEN LEONG and if more than one in equal shares as tenants in common.

44. Ms Austin had been the deceased’s clinician. She disclaimed her share of the estate, as she considered it inappropriate to accept a gift from a person with whom she had been in a purely professional relationship: Arnott at [6]. The executor of the will was then in doubt as to who was entitled to Ms Austin’s disclaimed half share, the possible beneficiaries being either Mr Leong or the parents of the deceased, who would be entitled to any share of the estate in respect of which there was an intestacy: Arnott at [5] –[6].

45. Justice Hamilton identified three possible paths that could lead to the will being construed so that the disclaimed gift would go to Mr Leong (at [8]): 1. First, the construction of the will itself could lead to the conclusion that it was the testator’s intention that, if one of the residual beneficiaries did not in fact take the gift intended for him or her, the balance of the residue should pass to the other; 2. Second, the residuary gift could be construed as a gift to a class or group, so that the testator would be taken to have intended that, upon the failure of the gift to one member of the class or group, that member’s share should pass to the other member of the class or group; 3. Third, the residuary clause could be regarded as subject to a contingency constituted by the words “if more than one”. Arguably, the expression “and if more than one in equal shares as tenants in common” might imply a contingency that if A predeceases the testator, the contingency of both surviving him not having been fulfilled, B takes the whole gift.

46. His Honour identified the following principles as being applicable to the resolution of the question of the appropriate disposition of the estate (at [16]): From the foregoing there can be derived the following propositions relevant in the present case: (1) The governing consideration is the intention of the testator. (2) The Court’s primary concern should be the language of the testator that is actually before it. (3) The principle re class gifts is applicable to a group of persons who do not strictly constitute a class, if it appears that that was the testator’s intention. (4) The principle applies upon the failure of the gift for any reason. It is not limited to a beneficiary predeceasing the testator.

47. Applying those principles, Hamilton J held that, whilst not “elegant or entirely easy”, the words “more than one” in the residue clause indicated that “the testator had turned his mind to the possibility that only one of the two named beneficiaries would take under the gift”: Arnott at [23]. Further assisted by the presumption against intestacy, his Honour concluded that Ms Austin’s disclaimed share should pass to Mr Leong.

48. Justice Mullins similarly reasoned in Re Gibson. Clause 3(b) of the will in Re Gibson provided as follows: IN THE EVENT of the said DOROTHY ISABEL GIBSON predeceasing me or failing to survive me, then the whole of my estate to my trustees upon trust — (i) TO TRANSFER my real property and improvements thereon situate 29 Turquoise Street, Holland Park aforesaid or any substitute property I shall own at the date of my death to my son RODNEY JOHN GIBSON and my daughter DEBRA JO-ANNE CAMPBELL as tenants in common in equal shares each share for his or her separate and individual use and benefit absolutely and (ii) TO PAY transfer and set over the balance of my residuary estate to such of my son RODNEY JOHN GIBSON and my daughter DEBRA JO-ANNE CAMPBELL and my step-daughters ANN LOUISE RICKUSS and KERRY ANNE JARVIS as shall survive me in equal shares each share for his or her separate and individual use and benefit absolutely.

49. Mrs Gibson and Ms Rickuss each disclaimed their share of the estate: Re Gibson at [8] –[9].

50. Justice Mullins first address the legal effect of Mrs Gibson’s disclaimer, observing (at [11]): The effect of [Mrs Gibson’s] disclaimer was to divest Mrs Gibson’s right to call on the executor of the deceased’s will to transfer the entire residuary estate to her under cl 3(a) of the will and to allow the executor to administer the will on the basis that the gift to Mrs Gibson failed: Probert v Commissioner of State Taxation (1998) 72 SASR 48, 55.

51. Her Honour observed that because cl 3(b) of the will “was expressed to apply where Mrs Gibson died before or failed to survive the deceased”, on a “literal interpretation”, disclaimer of her interest would “not fall within the contingencies of Mrs Gibson’s predeceasing or failing to survive the deceased”: at [12]. Her Honour further observed that “the general principle is that where there is a gift over upon alternative contingencies, the gift over will not take effect unless one or other of those exact contingencies happens”, one potential outcome of the disclaimer would be that “the failure of the gift to Mrs Gibson would therefore result in intestacy”: at [12].

52. However, as in Arnott, her Honour referred to the “entrenched approach to the construction of a will to favour the construction that avoids intestacy”: Re Gibson at [13], citing Fell v Fell (1922) 31 CLR 268 at 275–276. Her Honour noted however, that the rule in Jones v Westcomb (1711) 24 ER 149 would avoid intestacy in respect of the gift to Mrs Gibson. Her Honour explained that this rule “is an exception to the general principle that the gift over on certain contingencies only takes effect if those contingencies happen and allows the will to be construed to imply an additional contingency for the gift over to take effect”: at [13]. Citing the judgments of Sir Wilfrid Greene MR and Romer LJ in Re Fox’s Estate [1937] 4 All ER 664 at 666, her Honour continued (at [13]): Where a testator has provided for the determination of an estate in any of two or more events, and has then given a gift over expressly to take place in one only of those events, the court will, in the absence of any indication to the contrary, imply, by way of necessary implication, an intention of the part of the testator that the gift over shall take effect, nor merely in the specified event, but on the happening of any of the events which were to determine the previous estate. That is the ordinary case of the application of the rule. It is to be remembered that that rule does not depend upon the existence in the will of some particular word or phrase, which, as a matter of construction, produces that result. It is dependent upon the necessary implication of a provision to that effect, in order to carry out what must have been the intention of the testator. … The principle is applicable, therefore, only in those cases where the court, looking at all the relevant circumstances of the case, including, of course, the will itself, comes to the conclusion that the testator must a fortiori have intended the disposition over to take effect in the event which has actually happened, although it is not the event which he has specified in his will as the one in which the gift over is to take effect.

53. Finally, whilst acknowledging that the rule in Jones v Westcomb “does not permit the court to interpret a will merely to obtain a result which it considers to be fair”, Her Honour concluded (at [14]): The court must construe the will to determine the real contingency that was intended to be met by the clause and determine whether the event that has actually occurred was impliedly intended by the deceased to be covered by that contingency: compare Verrall v Jackson [2006] QSC 309 at [97].

54. Her Honour inferred from the structure of the will that the deceased had intended that Mrs Gibson would be his primary beneficiary and that cl 3(b) set out his preferred disposal of the estate if Mrs Gibson did not succeed his estate. In these circumstances, her Honour held at [15] that: … what the deceased intended to guard against was an intestacy due to the gift to Mrs Gibson not taking effect. The result of the disclaimer of the gift by Mrs Gibson is the same contingency that the deceased was endeavouring to avoid by including cl 3(b) in his will. In those circumstances, the rule in Jones v Westcomb should apply, and cl 3(b) of the will should be construed as impliedly including the event of Mrs Gibson disclaiming the gift under cl 3(a) of the will.

55. Accordingly, her Honour held that the result of the disclaimer by Mrs Gibson, the deceased’s estate must be distributed pursuant to clause 3(b) of the will: at [16].

56. In relation to the disclaimer by Ms Rickuss her Honour applied a different analysis. Section 33P of the Succession Act 1981 (Qld) provides that: If a part of a disposition in fractional parts of all, or the residue, of the testator’s estate fails, the part that fails passes to the part that does not fail and, if there is more than 1 part that does not fail, to all those parts proportionately.

57. Her Honour held that s 33P applied to the disclaimer by Mrs Rickuss (at [32]): The purpose of s 33P of the Act is to avoid intestacy. There is no contrary intention disclosed in the will that precludes the application of s 33P(1) of the Act. The conditions for its application have been fulfilled. It applies to the share of Ms Rickuss under cl 3(b)(ii) of the will which she has disclaimed, so that the share which she otherwise would have taken passes proportionately to the other three named beneficiaries under cl 3(b)(ii) of the will.

58. Although unnecessary to decide, her Honour held that, in the alternative, it was “clear that the rule in Jones v Westcomb should apply to Ms Rickuss’ disclaimer on the basis that the real contingency that the deceased was guarding against by disposing of his residuary estate to those of his children and stepchildren who survived him was a partial intestacy”: Re Gibson at [33]. Her Honour concluded that clause 3(b)(ii) of the will “should be interpreted as if the event of disclaimer was within the contingency for which express provision was made in cl 3(b)(ii)”: at [33]. Accordingly, her Honour made a declaration that the result of Ms Rickuss’ disclaimer was that her share was to pass in equal shares to the remainder of the remainder of the beneficiaries provided for in clause 3(b)(ii) of the Will (that is, Mr Gibson, Ms Campbell and Ms Jarvis): at [35].

59. It may be noted that although other States and Territories have equivalent provisions to s 33P of the Succession Act 1981 (Qld) (the Succession Act (Qld)) (see, for example s 42 of the Succession Act 2006 (NSW)), there is no equivalent provision in ACT legislation (s 25 of the Wills Act 1968 (ACT) only applies to a devise of real property)).

60. As can be seen from Arnott and the holding in Re Gibson concerning Mrs Gibson’s disclaimer, a clause in a will which is contingent on the death of a beneficiary may nonetheless apply in circumstances where the beneficiary disclaims the gift if the clause, read in the context of the whole will, evinces an intention that the clause was intended to guard against an intestacy due to the gift not taking effect for any reason. The strong presumption against intestacy will often be a powerful matter to take into account when determining the proper construction of such a clause.

61. However, in the present case, there are two possible constructions of the Will which would each avoid intestacy. First, the Will could be construed as having the effect that if the gift to one of the beneficiaries failed for any reason, his or her share should be conferred upon their child(ren). Alternatively, the Will could be construed as having the effect that if the gift to one of the beneficiaries failed for any reason other than the death of that beneficiary, his or her share should be conferred upon the other beneficiary.

62. The applicant submitted that the second construction should be preferred. On balance, I agree. The aim when construing a will is to give effect to what can be ascertained, having regard to the admissible evidence, the testator intended by the words used: De Lorenzo v De Lorenzo [2020] NSWCA 351; 104 NSWLR 155 at [50], citing Fell v Fell at 273 – 274 and Perrin v Morgan [1943] AC 399 at 406, 416. However, as McWilliam AsJ held in In the Estate of Koppie [2019] ACTSC 106 at [84]–[85], “a will is not drafted as if it were a statute and is not to be construed as such”.

63. In the present case, the scheme that the deceased conceived in the Will was that there would be no residuary estate because the entirety of his Estate would be divided, in equal shares, between his two surviving children. It was only in the event that one of the children did not survive the deceased by thirty days that the deceased’s grandchild (or grandchildren) would become entitled to take the share their parent would have taken. Textually, this latter clause is not operative, because Angelo Pellegrino has not died.

64. When construing a will “[t]he search is for [the testator’s] expressed intentions, not what [the testator] meant to say, but what [the testator] actually said”: Middleton v Schofield [2022] NSWSC 1454 at [17] (emphasis in original), citing Farrelly v Phillips [2017] SASCFC 111; 128 SASR 502 at [32]; Carrington v Wallace [2019] NSWSC 1301 at [57]. In the absence of any admissible extrinsic material supporting a contrary intention, the textual limitation in the latter clause of the Will should be applied. As Angelo Pellegrino has not died, Angelo Pellegrino’s daughter is not entitled to his share of the Estate.

65. The alternative construction is also not without its textual difficulties. Specifically, the Will provides that “the whole of my estate in equal shares” is to be conferred on the applicant and Angelo Pellegrino. Other than the conditional clause, no provision is made in the event of failure of either gift. However, in my view, the use of the words “whole of my estate” are an indication that, if the gift to either child failed and the conditional clause discussed above did not apply, then that child’s share of the Estate should pass to the other child. This construction is also supported by the decision in Re Gibson concerning Ms Rickuss’ disclaimer. As noted above, whilst s 33P of the Succession Act (Qld) was determinative of the effect of Ms Rickuss’ disclaimer, Mullins J expressed the view, in the alternative, that the application of the rule in Jones v Westcomb would lead to the same outcome, that is, that the failed share of Ms Rickuss should be distributed to the other beneficiaries listed in the clause.

66. Accordingly, whilst each of the constructions set out at [61] above are open, on balance, I consider that the better construction of the Will is the second, namely that, if the gift to either of the deceased’s children failed for any reason other than the death of that beneficiary, that child’s share of the Estate should be conferred upon the other child.

67. Judicial advice should be given that the gift to Angelo Pellegrino having failed as a result of his disclaimer, his share should pass to the other named beneficiary, namely, the applicant, and that, on the available evidence, the applicant is justified in distributing to herself any and all assets remaining in the Estate.

68. As noted above, s 63(5) of the Trustee Act requires that, prior to conveying or distributing any property in accordance with the opinion, advice or direction, the trustee must “give notice to any person whose rights as beneficiary may be prejudiced by the conveyance or distribution”. Section 63(6) of the Trustee Act further requires that the notice “state shortly the opinion, advice or direction, and the intention of the trustee to convey or distribute in accordance with it”. Accordingly, the applicant must provide notice of this opinion to both Angelo Pellegrino and his daughter and her intention to act upon this opinion prior to any distribution of Angelo Pellegrino’s share of the Estate.

69. If, after receipt of the notice, Angelo Pellegrino or his daughter seeks a different disposition of Angelo Pellegrino’s share of the Estate, either may approach this Court for a different order or direction (including, for example, an order for rectification of the Will): s 63(7) of the Trustee Act. The conclusions in this judgment would, of course, not be binding on the Court in the event of any such application.

70. Section 63(7) provides that any application for a different order or direction must be made “within such time as may be prescribed by rules of court, or as may be fixed by the Supreme Court”. I am not aware of any rules which prescribe a time period for the purpose of s 63(7). I consider that six weeks is a reasonable time for any application to be made following service of the notice, and will order accordingly.

Orders

71. For the above reasons, the following orders are made: (i) Pursuant to s 63 of the Trustee Act 1925 (ACT), in the opinion of the Court, and on the basis of the evidence presently before the Court, Theresa Johnson, as the executor of the estate of the late Giuseppe Pellegrino, is justified in proceeding on the basis that Angelo Pellegrino has disclaimed his share of the estate of the late Giuseppe Pellegrino and may distribute to herself any assets remaining in the estate of the late Giuseppe Pellegrino in accordance with the requirements of the Trustee Act. (ii) Pursuant to s 63(7) of the Trustee Act, any application for an order under s 63(7) or direction made by any other beneficiary of the Will is to be made within six weeks of service of notice of this opinion of the Court.

I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: