Debono, Re; Re Debono [1992] QSC 214

TRANSCRIPT OF PROCEEDINGS cf./ 'f l.\JJii'. State Reporting Bwuu, 4th Aoor, The Law Courts, George Street, })R}SBANE. 0. 4000 Tel. (07) 2Z7.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must notbe made or sold without the written authority of the Director, State Reporting Bureau.) ·····---------..,.-- ·~. SUPREME COURT OF QUEENSLAND ~ CIVIL JURISDICTION RYAN J No 412 of 1992 IN THE MATTER OF THE SUCCESSION ACT 1981-1983 C: IN THE MATTER OF THE WILL OF CHARLES ANTHONY DEBONO IN THE MATTER OF AN APPLICATION BY JUNE LORETTA DEBONO BRISBANE .. 23/6/92 JUDGMENT 1 -- 1 of 7 -- ~~-·- JUDGMENT HIS HONOUR: I will make an order in accordance with the judgment which I have delivered. 2 10 20 0 () 30 0 40 0 50 60 -- 2 of 7 -- IN THE SUPREME COURT OF QUEENSLAND o.s. No. 412 of 1992 IN THE MATTER OF the Succession Act 1981-1983 - and - IN THE MATTER OF the Will of CHARLES ANTHONY DEBONO of Reesville Road, Reesville in the State of Queensland, Businessman - and - IN THE MATTER OF and application by JUNE LORETTA DEBONO JUDGMENT - RYAN J. Delivered the Twenty-third day of June, 1992. Counsel: Solicitors: Mr. S.W. Sheaffe for Applicant Mr. L. Hampson for Respondent/Estate Mr. A. Innes for Respondent/M. Debono Fender & Whitehouse t/a for Greg Williams & Co., Solicitors, .Mooloolaba for Applicant Thynne MacCartney t/a for John Solicitors, Maleny for Respondent Robinson Hoskin for Respondent/Debono Sheldon, Hearing Date: 18 June, 1992. -- 3 of 7 -- CJ ( \ ' ----.r,' IN THE SUPREME COURT OF QUEENSLAND O.S. No. 412 of 1992 IN THE MATTER OF the Succession Act 1981-1983 - and - IN THE MATTER OF the Will of CHARLES ANTHONY DEBONO of Reesville Road, Reesville in the State of Queensland, Businessman - and - IN THE MATTER OF and application by JUNE LORETTA DEBONO JUDGMENT - RYAN J. Delivered the Twenty-third day of June, 1992. Application has been made on the part of the widow of a deceased person for two orders. One is that adequate provision be made for her proper maintenance and support out of the estate of the deceased. The other is for a declaration that she and the deceased held the beneficial interest in certain land at Maleny as joint tenants, or alternatively for a declaration that upon the construction of a clause of the will, the deceased's interest in the land is part of the residuary estate. It has been said that problems as to the construction of a will should not be decided upon an application for adequate provision to be made out of an estate, but if they are material to the question whether adequate provision has been made for the applicant, the application should be adjourned to enable them to be decided in appropriate proceedings: Re Davis; Davis v. -- 4 of 7 -- 2 McEacheon [ 19521 V. L. R. 517. However, it has also been said that the court should make. determinations, with a minimum of procedural complications, of all relevant questions concerning the subject matter in dispute. In Estate of Langley; Langley v. Lanqley [1974] 1 N.S.W.L.R. 46. In my opinion, the question whether the two issues should be decided in one proceedings, or whether the application for adequate provision should be adjourned, is to be answered having regard to the particular situation, including whether the parties are mainly the same and the complexity of the interpretation in issue. A declaration of the rights of the deceased and the applicant to the land at Maleny pursuant to certain documents which were placed before me would involve the construction of these rather complex documents. Having regard to the form in which the declaration is sought, this is not a matter which concerns only the deceased's executor and the applicant; it concerns also the persons referred to in a deed made on 23 November, 1989 as the vendors of the land. It may be that they would seek to contend that the deceased and his wife do not have a beneficial interest in the land. Accordingly, as the applicant seeks a declaration that she and the deceased held the beneficial interest in the land at Maleny as joint tenants, it will be necessary to serve the ·• summons on the vendors. I consider that, in the interest of expedition and limitation of costs, the application for a declaration should be heard immediately preceding the hearing of the application for adequate provision to be made out of the estate of the deceased. r:_· '.) () (J ~~~ ·~/ -- 5 of 7 -- 3 There is a further procedural difficulty. The applicant has deposed that the deceased had a daughter born out of wedlock who has been brought up by her mother and her mother's husband. The daughter does not have any knowledge of the existence of the deceased, and believes the husband of her mother is her natural father. Counsel for the deceased's son gave me some further particulars as to the child. He stated that the deceased had claimed to have a daughter born out of wedlock, and he told me who was the mother of the child. This information should suffice to enable the executor to cause a search to be carried out of the register of births, deaths and marriages. I direct that the executor shall cause to be carried out a search of the register, and if the deceased is registered as the father of the child or if no person is registered as the father of the child, I direct that the summons be served on the child's mother. I give the further following directions:- 1 • That any further affidavits on behalf of the applicant be filed and served on the solicitors for the executor and on the solicitors for Mark Debono on or before Thursday, 16th July, 1992. 2. That any affidavits by or on behalf of the beneficiaries if they have given notice of intention to appear and any '* affidavits by or on behalf of the·executor as aforesaid be filed and served on the other parties hereto by 30th July, 1992. 3. That affidavits in reply by the Applicant be filed and served on the other parties hereto by 6th August, 1992. -- 6 of 7 -- ---- -- -- ---~-------~~---- 4 4. That any party may require any deponent to any affidavit filed herein to be present for cross-examination on giving 7 days notice to the other party on whose behalf the affidavit was filed. 5. That the application be adjourned to be brought on upon 21 days notice by the applicant to the other parties or if agreed by the parties be adjourned to the Civil List. 6. The application for declaratory relief in paragraphs 2 and 3 of the application be served by the applicants together f'\ with any supporting affidavits on the vendors, Mr. I an ,_ _/ Herbert Rogers and Sofia Prudencticah Rogers on or before the 30th July, 1992. 7. That any party be an liberty to apply on 7 days notice to the other parties. 8. That the costs of all parties of and incidental to this application and order be reserved. '~ ,) \ . i \.__j -- 7 of 7 --