Comino v Comino & Anor [2024] QSC 166

SUPREME COURT OF QUEENSLAND CITATION: PARTIES: FILE NO/S: DIVISION: PROCEEDING: ORIGINATING COURT: Comino v Comino & Anor [2024] QSC 166 ARTHUR STEPHEN COMINO as personal representative of the estate of Penelope Comino (applicant) v MARIA PENELOPE COMINO as personal representative of the estate of Penelope Comino (first respondent) ANTHONY STEPHEN COMINO as personal representative of the estate of Penelope Comino (second respondent) 7099/24 Trial Division Application Supreme Court of Queensland DELIVERED ON: 21st August 2024 DELIVERED AT: Brisbane HEARING DATE: 20th June 2024 JUDGE: Callaghan J ORDER: 1. Upon the proper construction of clause 9 of the last will of Penelope Comino (the deceased) dated 6 August 2000 (the Will), and in the circumstances that have occurred, the deceased’s interest in the residence at 723 Trouts Road, Aspley, Brisbane was gifted to ARTHUR STEPHEN COMINO and MARIA PENELOPE COMINO, as tenants in common in equal shares. 2. The costs of each of the parties to be paid from the deceased’s estate on the indemnity basis. CATCHWORDS: SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – WHAT INTEREST PASSES – FEE SIMPLE IN OTHER CIRCUMSTANCES – where the applicant seeks a declaration as to the interpretation of a will – whether a clause is to be construed as an unfulfilled condition with the result that an interest in property falls into the residue of the estate – where there are specific features which distinguish it from comparable authority – where the application of ordinary principles of interpretation indicates an -- 1 of 11 -- 2 intention that the interest in the property was intended to pass to the applicant and first respondent, rather than fall into the residue COUNSEL: L. Bowden for the applicant A. Collins for the first respondent M. Crofton for the second respondent SOLICITORS: Stephen Comino and Arthur Comino Solicitors for the applicant Woods Prince Lawyers for the first respondent Neil Sullivan & Bathersby Lawyers for the second respondent [1] The applicant seeks a declaration as to the proper construction of the Will made by his late mother Penelope Comino (“Penelope”). His construction is supported by the first respondent and opposed by the second respondent. Background [2] Penelope was married to Stephen Comino (“Stephen”). They had three children: Arthur Stephen Comino (the applicant, “Arthur”), Maria Penelope Comino (the first respondent, “Maria”) and Anthony Stephen Comino (the second respondent, “Anthony”). [3] Penelope prepared her last Will (“the Will”) on 6 August 2000. At that time, Penelope and Stephen owned – as joint tenants – a property located at 723 Trouts Road, Aspley (the property). [4] On 21 July 2009 Stephen – for reasons unclear – severed the joint tenancy with Penelope.1 They became tenants in common, and Penelope and Stephen Comino therefore each held their own 50 percent share in the property. [5] Apparently anticipating that he would be able to do so, by his last Will (dated 26 August 2008) Stephen bequeathed his 50 percent share in the property to Arthur and Maria as tenants in common. [6] Stephen Comino died on 28th September 2013. His 50 percent share was, in accordance with his Will, received by Arthur and Maria. 1 Pursuant to Land Title Act 1994 (Qld) s 59. -- 2 of 11 -- 3 [7] At some point after making her Will, Penelope lost capacity. She died on 17 March 2019, leaving her estate to be dealt with under a Will made at a time when the property was owned by her as a joint tenant with Stephen. [8] In fact, at the time of her death, whilst Penelope had an interest in fee simple in the property, it was a 50 percent share as tenant in common with the applicant and first respondent who, as noted, each had inherited a 25 percent share. [9] This case concerns that one-half share of the property held by Penelope. Arthur and Maria argue its fate is dictated by one clause of the Will (cl 9) which purports to bestow the property on them. Anthony maintains this clause cannot apply, with the result that Penelope’s interest in the property falls into the residue, and Penelope’s 50 percent interest is shared between the three siblings in equal shares as tenants in common. The Will [10] These are some key provisions of the Will. [11] Clause 1 of the Will provides: 1. I REVOKE all former Wills and Testamentary dispositions made by me AND DECLARE this to be my last Will. [12] Clause 2 provides: 2. I APPOINT my dear husband STEPHEN COMINO, my sons ARTHUR STEPHEN COMINO and ANTHONY STEPHEN COMINO and my daughter MARIA PENELOPE COMINO executors and trustees of this my Will or the survivors or survivor of them executors and trustees or executor and trustee of this my Will and the said STEPHEN COMINO and/or the said ANTHONY STEPHEN COMINO and/or the said MARIA PENELOPE COMINO as the case may be are or is hereinafter referred to as “my trustee”. [13] Clause 3 provides: I GIVE DEVISE AND BEQUEATH any share held by me in KINGSHELF NO. 79 PTY. LTD. to the said ARTHUR STEPHEN COMINO and the said MARIA PENELOPE COMINO as tenants in common in equal shares. [14] Clause 5(a) provides: -- 3 of 11 -- 4 I GIVE DEVISE AND BEQUEATH my shares and interest in the Vineyard Partnership and in the Winemaking Partnership presently carried on by me in partnership with my said husband STEPHEN COMINO and with my said son ANTHONY STEPHEN COMINO under the name, style, or firm of KOMINOS WINES at New England Highway, Severnlea in the State of Queensland, together with my share of the assets of the Partnership comprising land and winery building, vineyards, vineyard and winemaking plant and equipment and stock of wines and together with any monies standing to my credit in the current account of the said partnership to my trustees and subject to the provisions following: (a) To divide the capital as well as the income thereof for such of the said ANTHONY STEPHEN COMINO, his wife MARY COMINO, any child or children of ANTHONY STEPHEN COMINO and MARY COMINO and any company in which ANTHONY STEPHEN COMINO is or will become a Shareholder and Director thereof, as ANTHONY STEPHEN COMINO by Deed or Deeds within the period of twelve (12) months from the date of my death appoints; … [15] Other subclauses in the Will in effect completed this process of transferring the interest in the vineyard to Anthony. [16] Clause 8 provides: I GIVE DEVISE AND BEQUEATH any motor vehicle owned by me at the date of my death to my daughter MARIA PENELOPE COMINO. [17] Clause 9 provides: 9. IN THE EVENT that I shall die possessed of the freehold residence at 723 Trouts Road, Aspley, Brisbane aforesaid owned by me and my said husband STEPHEN COMINO having predeceased me THEN I GIVE AND BEQUEATH the said house property and contents thereof equally between the said ARTHUR STEPHEN COMINO and the said MARIA PENELOPE COMINO, as tenants in common in equal shares PROVIDED SHOULD either of ARTHUR STEPHEN COMINO or MARIA PENELOPE COMINO predecease me leaving a child or children who shall survive me then such last mentioned child or children shall take and if more than one equally between them the share and interest in my estate which his her or their parents would have taken had he or she survived me. [18] Clause 10(b)(ii) provides: I GIVE DEVISE AND BEQUETH the rest and residue of my estate… -- 4 of 11 -- 5 (ii) after [my husband’s] death to hold as well as the capital as the income thereof UPON TRUST for the said ARTHUR STEPHEN COMINO, ANTHONY STEPHEN COMINO, and MARIA PENELOPE COMINO as tenants in common in equal shares PROVIDED should any of the said ARTHUR STEPHEN COMINO, ANTHONY STEPHEN COMINO, and MARIA PENELOPE COMINO predecease me leaving a child or children who shall survive me then such lastmentioned child or children shall take and if more than one equally between them the share and interest in my estate which his her or their parent would have taken had he or she survived me. Applicable principles [19] It was agreed that the application should be determined by reference to the principles identified by Isaacs J (as his Honour then was) in Fell v Fell:2 “(1) “Every will must by law be in writing, and it is a necessary consequence of that law that the meaning must be discovered from the writing itself, aided only by such extrinsic evidence as is necessary in order to enable us to understand the words which the testator has used” … (2) “The instrument… must receive a construction according to the plain meaning of the words and sentences therein contained. But… you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it”… (3) “If the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the Court is to supply the defect by implication, and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has on the whole will, sufficiently declared”… (4) An inference cannot be made “that did not necessarily result from all the will taken together” … A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed… (5) “We cannot give effect to any intention which is not expressed or plainly implied in the language of” the “will” … “You have no right to fancy or to imply, unless there be something within the four corners of the will which is not only consistent with the implication you make, but which could hardly stand, if at all, in the will, without that implication being made. That is what is called necessary implication, and legitimate implication, in contradistinction to gratuitous, groundless, fanciful implication” … 2 (1922) 31 CLR 268 -- 5 of 11 -- 6 (6) “If the contents of a will show that a word has been undesignedly omitted or undesignedly inserted, and demonstrate what addition by construction or what rejection by construction will fulfil the intention with which the document was written, the addition or rejection will by construction be made” … (7) “When the will is in itself incapable of bearing any meaning unless some words are supplied, so that the only choice is between an intestacy and supplying some words; but even there as in every case, the Court can only supply words if it sees on the face of the will itself clearly and precisely what are the omitted words, which may then be supplied upon what is called a necessary implication from the terms of the will, and in order to prevent an intestacy”… (8) “There are two modes of reading an instrument: where the one destroys and the other preserves, it is the rule of law, and of equity, following the law in this respect (for it is a rule of common sense…) , that you should lean towards that construction which preserves, than towards that which destroys. Ut res magis valeat quam pereat is a rule of common law and common sense; and much the same principle ought surely to be adopted where the question is, not between two rival constructions of the same words appearing in the same instrument, but where the question is on so ready an instrument as that you may either take it verbally and literally, as it is, or which a somewhat larger and more liberal construction, and by so supplying words as to read it in the way in which have every reason to believe that the maker of it indented it should stand; and thus again, according to the rule ut res magis valeat quam pereat, to supply, if you can safely and easily do it, that which be per incuriam omitted, and that which instead of destroying preserves the instrument; which, instead of putting an end to the instrument and defeating the intention of the maker of it, tends rather to keep alive and continue and give effect to that intention”… (9) If on reading the will you can see some mistake must have happened, “that is a legitimate ground in construing an instrument, because that is a reason derived not dehors the instruments, but one for which you have not to travel from the four corners of the instrument itself” … (10) “The mind never inclines towards intestacy; it is a dernier ressort in the construction of wills” … The controversy [20] It is said, by Anthony, that the introductory words to cl 9 of the Will constitute a condition. Its terms were not met. Consequently, Penelope’s interest falls into the residue to be shared three ways. [21] Anthony points out that, whatever her expectations were (and presumably remained) Penelope did not die “possessed of” the property – she owned only half of it. The -- 6 of 11 -- 7 “event” identified at the start of cl 9 did not occur. He insists, by reference to its own “plain words”, that clause 9 cannot take effect. The requisite “condition” is unfulfilled, in which case the property must fall into the residue for distribution in accordance with cl 10. [22] On Anthony’s behalf attention is called to Watson v Ralph3 (Watson), a case which is said to bear a “striking analogy” to this matter. [23] In that case, the testatrix and her husband were members of a partnership that owned land and other assets at Whittlesea. The testatrix was therefore never the legal owner of the property in question. As a partner, she enjoyed an equitable interest in the property of the partnership. [24] Her will, however, provided that “if at the time of my death I shall be the owner of freehold property situate at Whittlesea in the State of Victoria owned at the date hereof jointly by my said husband and myself ”,4 that property was to be sold, with the proceeds to be invested for the deceased’s husband (a life interest), and then given to her two daughters. [25] The question then was whether the disposition to the daughters took effect, or whether the interest in the property fell to be distributed as part of the residue of the estate, which was left to the deceased’s sons. The daughters argued that the Will should be construed such that their mother’s interest in the land passed to them. [26] The court noted that, on a literal reading, the fact that the deceased had an equitable interest did not mean she was the “owner” of the estate. [27] There was a distinction to be drawn between the contemporaneous equitable interest, and an anticipated future ownership. The natural effect of the words used was therefore to make the disposal to the daughters dependant “upon a contingency which had not occurred at the date of the will – namely, that she had become the sole owner of land which at the date of the will was held jointly.”5 3 Watson v Ralph (1982) 148 CLR 646. 4 Ibid, 649. Italics added. At this point it can be noted that the language used in Watson (“I shall be the owner of the freehold property situate at Whittlesea) is different from the language used by Penelope (“if I shall die possessed of the freehold residence”). In one sense Penelope was “possessed” of property, and at all times she held a legal (as opposed to equitable) interest in the property, whether as joint tenant or tenant in common. 5 Ibid, 653. -- 7 of 11 -- 8 [28] Other interpretations, such as “if I shall be the owner of an interest”, or “if I shall be owner as a partner”, were rejected. Since the deceased was not the sole beneficial owner of the property, the property did not pass to the daughters. The court recognised that this outcome was unfortunate, but felt bound to follow the intention evinced by the words of the will themselves. Those words provided for a specific possibility that did not occur. The court was not, in the circumstances, “at liberty to speculate as to the intention of the testatrix.”6 [29] Building on the analogy, for Anthony it is submitted that in the present case, the language of cl 9 creates conditions. Those conditions are, according to this interpretation, first that Penelope be in possession of the property because her husband predeceased her, and secondly, by process of necessary implication, that when her husband predeceased her the principle of survivorship must have been in place. The condition, construed in this way, was not satisfied, and the clause is therefore ineffective. [30] For Anthony, another comparison is made to Watson. It is suggested that the reference to the property being “owned by me and my said husband STEPHEN COMINO as joint tenants” indicates the drawing of a distinction between the situation at the date of the Will, and the possible situation at the date of her death. This distinction means that the words “IN THE EVENT that I shall die possessed of the freehold residence…” should be construed as a condition of possession of the whole of the freehold. This condition was also not satisfied. [31] Further, it is argued that once the severance by transfer occurred, Penelope became the owner of a property that did not previously exist. The half share held by Penelope at the time of her death is not synonymous with the share described in cl 9, that being a whole interest in the property which arose from Stephen Comino predeceasing Penelope while they were joint tenants. It is therefore claimed that the thing which is given by Penelope is not able to be found. The second respondent avers that “it is neither possible nor appropriate, given the words he [sic] employed in cl 9, to guess at [Penelope’s] intention and words cannot be introduced to reflect an intention that any interest in the Property was intended to pass by the clause’. Consideration 6 Ibid, 654. -- 8 of 11 -- 9 [32] The points made can be understood and comparison between this case and Watson is valid. It must be accepted, however, that notwithstanding some similarities between the cases, there are also points of distinction.7 The “analogy”, whether striking or not, must necessarily remain just that. A finding about an intention evinced in one Will cannot of itself create a binding precedent to be applied in the case of another. The fact that two Wills contained analogous clauses does not compel a conclusion about analogous intentions as to the disposition of specified property. The court in Watson did not purport to alter or qualify the applicable principles. The task in this case remains, as it did in Watson, to give effect to the intention of the testatrix in the circumstances of the particular case. The existence of an intention is a question of fact that is to be answered after reading this Will as a whole. [33] That is, the functional question for resolution is whether, looking at the whole of the instrument, Penelope’s Will intended for her entire interest in the property to go to Arthur and Maria. [34] Considerations relevant to that question include the propositions that: (a) The “residual” clause is just that – specific property is dealt with by specific clauses. (b) No specific property goes to all of Arthur, Maria and Anthony. It is “plainly implied” that Penelope did not want the benefit of any specific item to be shared between the three of them. (c) The Will deals with specific property in three different ways – either to Maria (the car, cl 8), Arthur and Maria together (cl 3 and cl 9), or to Anthony by himself (cl 5). 7 The deceased in Watson may have referred to “my freehold property”, but as noted she did not have a freehold interest in land, only an equitable one. This meant there were numerous possibilities at large. “Considerable departure” from the natural meaning of the words “owner of freehold property” would have been required in order for that part of the Will to operate in favour of her daughters. It was therefore open to conclude that by this clause the testatrix provided – and intended to provide – for one, particular situation that was made contingent in a way that meant her intention was, if that contingency was not realised, for the property to go to her sons by way of residuary distribution. For reasons explained below at [34]-[35], an “analogous” conclusion is displaced by inference drawn from circumstances existing here. -- 9 of 11 -- 10 (d) For the purposes of specific property dispositions, a distinction can therefore be drawn as between Arthur and Maria in one category of beneficiary, Maria by herself in another (the car), and Anthony in another. (e) The property is the subject of a specific disposition made in a separate clause. (f) The only testamentary interest Penelope could have contemplated having in the property was all of it. She did not leave her share to her husband – knowing, at the time she made her Will, that she did not have to do that if she predeceased him. In her mind, it must equally have been clear what would happen if he predeceased her, and her intention can be deduced accordingly. That intention must have been that all her interest in the property should go to Arthur and Maria. [35] No extrinsic material is necessary to support this conclusion. Without speculating, it can be found as a fact that it was Penelope’s intention for this property to go to the pair of siblings who were coupled in two separate clauses of the Will, as opposed to Anthony who was singled out when he was mentioned as beneficiary of specific property. If Anthony had been intended to benefit from the property, simplicity itself dictates that Penelope would have said so. It is not open to conclude that her intention might have been to send her interest in the property along the twisted path that had to be followed such that some of it would go to Anthony as part of the residue. [36] Anthony does also submit that if the Will is read as a whole, it is apparent that Penelope employed relevant words when gifting assets where her share might be fractional, or where she was uncertain as to the interest she may hold at her death. [37] For instance, at cl 3 of the Will, Penelope gifted “any share held by me”, at cl 4 she bequeathed “any monies” to the credit of a trust, and at cl 5 she gifted “my shares and interest” in a partnership. It is said that Penelope would have used similar language in cl 9 as to what was used in cl 5, had she intended any interest she may have had at the time of her death to pass to the applicant and first respondent. In the absence of such language specifically being used, it is said that words such as “all my interest (in the property)” should not be read into the Will. [38] To parse the document in this way would be to interpret it like a statute, rather than as a practical working document calculated to distribute several things to three people. -- 10 of 11 -- 11 This is a simple will drafted to meet simple situation. Within its “four corners” there is enough information to give confidence that Penelope intended all of her interest in the property to go to Arthur and Maria. [39] The reading into the Will of as few (undesignedly omitted) words as “my interest in” after the word “bequeath” in the fourth line of Cl 9 requires minimal adjustment to the text, and is sufficient to give effect to Penelope’s intention as discernible from the whole of the document. That is the way in which the Will should be read. [40] After finding in the applicant’s favour, I invited submissions as to costs and the form of orders that would give effect to these reasons. With the agreement of all parties, these are the orders – 1. Upon the proper construction of clause 9 of the last will of Penelope Comino (the deceased) dated 6 August 2000 (the Will), and in the circumstances that have occurred, the deceased’s interest in the residence at 723 Trouts Road, Aspley, Brisbane was gifted to ARTHUR STEPHEN COMINO and MARIA PENELOPE COMINO, as tenants in common in equal shares. 2. The costs of each of the parties to be paid from the deceased’s estate on the indemnity basis. -- 11 of 11 --