Taranto & Ors v Hansard - [2008] QSC 136

[2008] QSC 136

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MCMURDO J

No 1677 of 2008

TARANTO & ORS	Applicant
and
HANSARD & ORS	Respondent

BRISBANE

..DATE 07/05/2008

ORDER

HIS HONOUR: These applications arise in relation to the estate of the late Angello or Alan Taranto. The applicants are Mr Elio Taranto, a brother of the deceased, and Mr David Taranto and Mr Peter Taranto, nephews of the deceased. The respondents in the present applications are a large number of people each of whom are beneficiaries or potential beneficiaries under one or more wills made by the late Mr Taranto in the five years or so prior to his death. But the active response to the present applications has been made by the respondent Mrs Hansard and other members of her family. I will refer to them simply as "the Hansards" as I will refer to the applicants as "the Tarantos".

There has been no grant of probate of any will. As already mentioned, there are several wills which were made in the five or so years prior to the death of Mr Alan Taranto. Each of them is in issue in proceedings commenced by the Tarantos and which are numbered BS1162 of 2008. They have been called, in the submissions, the "probate claims". There is a difference from will to will in respect of the beneficial entitlements and also in relation to the precise identify of the executors. But broadly speaking, under each of the wills there is, within the body of persons appointed executors by that will, a representative of the Tarantos and a representative of the Hansards. The Tarantos raise several questions as to the validity of those wills including allegations of undue influence by Mrs Hansard at least.

Now, also within those same proceedings there are further claims, which are the subject of paragraphs 15 to 26 of that Claim, which involve complaints against the Hansards relating to a large number of transactions during the lifetime of the deceased. These have been referred to in argument as the "inter vivos claims". There are allegations in the inter vivos claims which certainly have some factual overlap with those in the probate claims. The issues, of course, are not identical but it is common ground that there is at least that potential factual overlap.

The Tarantos have brought those claims for the benefit of the estate. At present, of course, they have no standing to do so because there has been no grant of probate and nor are they in receipt of any other grant in relation to the estate. In relation to such a grant they seek the appointment of Mr Fradgley, a solicitor, under a grant of administration, pendente lite, that is until the determination of those proceedings which they brought against the Hansards. That application is not opposed by anyone, and accordingly there will be an order pursuant to Section 6 of the Succession Act and subject to the requirements of the Registry that John William…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Taranto & Ors v Hansard

Details

AGLC: Taranto v Hansard [2008] QSC 136
Case: [2008] QSC 136
Decision Date: 7 May 2008

CaseChat Overview and Summary

The Supreme Court of Queensland was presented with an application by the Tarantos, relatives of the deceased Alan Taranto, to prosecute claims against the Hansards, other beneficiaries of the estate. The applicants sought to litigate both probate claims, regarding the validity of various wills, and inter vivos claims, pertaining to transactions during the deceased's lifetime, concurrently. This was to be done pending the appointment of an administrator pendente lite and a decision on which will, if any, was valid. The key legal issue before the Court was whether the applicants should be granted leave to bring these claims for the benefit of the estate before a grant of probate, in accordance with Section 49(2) of the Succession Act. The applicants argued that this would save costs and time and avoid inconsistent factual findings. The Hansards opposed the application, raising concerns about res judicata and the merits of the inter vivos claims.

The Court found that the joinder of Mr Fradgley, the proposed administrator, as a party to the proceedings would address the res judicata concerns, as it would bind any future grantee of probate or letters of administration. The Court also considered the discretionary factors raised by the Hansards, such as the merits of the claims, but ultimately found the potential benefits of allowing the applicants to proceed outweighed these considerations. The Court decided to grant the application, subject to the joinder of Mr Fradgley as a party, and adjourned the hearing to consider an application for indemnity of costs.

The Court made an order for the appointment of Mr Fradgley as Administrator pendente lite and granted the applicants leave to prosecute the claims on behalf of the estate, subject to Mr Fradgley being joined as a party. The Court also adjourned the hearing to consider the application for indemnity of costs.

Orders