Comino v Comino

In the case of Comino v Comino, the applicants, Arthur Stephen Comino and Maria Penelope Comino, sought a declaration as to the interpretation of a clause in the last will of Penelope Comino. The specific issue at hand was whether a particular clause in the will should be construed as an unfulfilled condition, resulting in an interest in a property falling into the residue of the estate. The dispute arose from the distribution of Penelope's interest in a residence located at 723 Trouts Road, Aspley, Brisbane, which was the subject of a joint tenancy with her late husband, Stephen Comino. The applicants argued that Penelope's entire interest in the property was intended to pass to them, whereas the respondents contended that the property should fall into the residue of the estate.

The court was required to determine the intention of the testatrix, Penelope Comino, in the specific circumstances presented by the case. The applicants contended that the half share held by Penelope at the time of her death was not synonymous with the share described in clause 9 of the will. They claimed that the interest in the property arose from Stephen Comino predeceasing Penelope while they were joint tenants, and therefore, the property should pass to the applicants. The respondents, on the other hand, argued that it was neither possible nor appropriate to guess at Penelope's intention and that words cannot be introduced to reflect an intention that any interest in the property was intended to pass by the clause.

The court examined the similarities and differences between this case and the case of Watson. While acknowledging that there were some similarities, the court emphasised that each case must be determined based on the intention of the testatrix in the particular circumstances. The court found that the specific property in question was dealt with by a specific clause in the will, and there was no indication that Penelope intended to share the benefit of the property with all three of her children. The court also noted that Penelope's entire interest in the property was intended to go to Arthur and Maria.

The court concluded that, upon the proper construction of clause 9 of Penelope Comino's will, her 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.

ORDERS:
1. Upon the proper construction of clause 9 of the last will of Penelope Comino dated 6 August 2000, 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.