Re Giannone

[2016] QSC 169

SUPREME COURT OF QUEENSLAND

CITATION:

Re Giannone [2016] QSC 169

PARTIES:

JOSHUA ROHAN GIANNONE

(applicant)

FILE NO:

SC No 3188 of 2016

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

12 July 2016 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2016

JUDGE:

Atkinson J

ORDERS:

1.   The undated document, shown and marked as Exhibit A of the Affidavit of Joshua Rohan Giannone dated 7 March 2016 (document 2 of the Court file), is not a valid Will of Adrian Giannone (deceased).

2.   Subject to the requirements of the Registrar, Letters of Administration on intestacy of the deceased be granted to Joshua Rohan Giannone as sole Administrator.

3.   The Applicant’s costs of the application be paid by the estate on an indemnity basis.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – TESTAMENTARY CHARACTER – GENERALLY – where a handwritten document purported to distribute the estate of the deceased – where it was unsigned and of unknown age – where it purported to deal with property no longer in the deceased’s possession – where it did not purport to distribute property in any particular percentage – whether the document could be properly considered a testamentary document and, if so, whether it required rectification – whether, alternatively, letters of administration should be granted to the applicant

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – PROCEDURE – QUEENSLAND – APPLICATIONS GENERALLY – where if the handwritten document did, in fact, distribute the estate of the deceased, the applicant would no longer be the sole beneficiary –  where it was appropriate for a potential administrator to bring an application which, if successful, would be against his own interests as a potential beneficiary

SOLICITORS:

Nautilus Law Group for the applicant

1. An application was made to the Court for a document to be regarded as the will of the deceased and then for that document to be rectified or, alternatively, that letters of administration of the deceased be granted to the deceased’s only child, his son, Joshua Rohan Giannone, as sole administrator of the estate. 

2. The son of the deceased has acted quite properly in bringing this application because if the handwritten document found by his mother, the ex-wife of the deceased, were to be regarded as a testamentary document and if it did, in actual fact, distribute the estate of the deceased, then the applicant would not be the only beneficiary of the deceased. 

3. For a number of reasons, I am not satisfied that the handwritten document can be considered as a will or constitute evidence of the testamentary intentions of the deceased.  It is not signed by him, it is of unknown age, it purports to deal with property which is no longer in the deceased’s possession, it does not effectively distribute property in any particular percentage, it is entirely too uncertain to be regarded as a will and, accordingly, there is no testamentary document to be rectified.

4. The applicant is otherwise entitled to letters of administration and, subject to the requirements of the Registrar, I grant letters of administration to Joshua Rohan Giannone. 

5. I will make the order as per the draft as amended, which I will initial and place with the file.

Order

1. The undated document, shown and marked as Exhibit A of the Affidavit of Joshua Rohan Giannone dated 7 March 2016 (document 2 of the Court file), is not a valid Will of Adrian Giannone (deceased).

2. Subject to the requirements of the Registrar, Letters of Administration on intestacy of the deceased be granted to Joshua Rohan Giannone as sole Administrator.

3. The Applicant’s costs of the application be paid by the estate on an indemnity basis.