The Estate of Diano
[2022] NTSC 23
•29 March 2022
CITATION:The Estate of Diano [2022] NTSC 23
PARTIES:THE ESTATE OF THE LATE
MARIA CATENA DIANO
ON REFERENCE from the Registrar of the Supreme Court of the Northern Territory
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:2021-02904-SC
DELIVERED: 29 March 2022
HEARING DATE: Reference from Registrar Bolton
JUDGMENT OF: Kelly J
Judgment category classification: C
Judgment ID Number: Kel2211
Number of pages: 9
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSThe Estate of Diano [2022] NTSC 23
2021-02904-SC
THE ESTATE OF THE LATE MARIA CATENA DIANO late of 27 Chewings Street, Alice Springs in the Northern Territory of Australia, retired, deceased
ON REFERENCE from the Registrar of the Supreme Court of the Northern Territory
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 29 March 2022)
The late Maria Catena Diano (“the Deceased”) died on 23 August 2021 aged 89. The death certificate gives her marital status as “widowed” and gives the details of her children as follows:
Given Names Sex/Gender Age/Date of Birth
Dino Male 72 Years (15/03/1949)
Albert Male 70 Years (04/08/1951)
Carmen Female 67 Years (10/11/1953)
Norman Male 64 Years (24/10/1956)
Maria Female (11/10/1957) (deceased)
Robert Male 62 Years (08/07/1959)
Anna Female 59 Years (02/02/1962)
Elizabeth Female 58 Years (27/03/1963)
The Deceased left a will dated 18 May 2000 (“the Will”) prepared by the Public Trustee of the Northern Territory. The substantive provisions of the Will are as follows.
1. I APPOINT my sons DINO DIANO and ALBERTO DIANO and my daughter CARMINA DIANO (“my Trustees”) as executors and trustees of this will and I DIRECT that in the event of any disagreement between them the decision of the majority shall prevail.
2. I GIVE each of my granddaughter’s[1] who are still living at my death one piece of jewellery.
3. I DIRECT that the residue of my jewellery be divided equally amongst my daughter’s[2] CARMINA DIANO, MARIA DIANO, ANNA DIANO and ELIZABETH DIANO as tenants in common in equal shares.
4. If my husband GENNARINO DIANO is proved to the satisfaction of my Trustee to have survived me by 28 clear days then I DIRECT that he be entitled to the residue of my estate.
5. If the preceding clause fails I DIRECT my Trustee to hold the residue of my estate ON TRUST to divide it amongst those of my children who attain EIGHTEEN (18) years and if more than one as tenants in common in equal shares. If any child of mine dies before attaining a vested interest and that child leaves any surviving children then those children will take the share which their parent would have otherwise taken and if more than one as tenants in common in equal shares upon their attaining EIGHTEEN (18) years.
On 14 January 2022, an application for probate of the Will (“the Application”) was filed by “ANTONIO GUISEPPE DIANO referred to in the will as DINO DIANO, ALBERT DIANO referred to in the will as ALBERTO DIANO and CARMEN RODABAUGH referred to in the will as CARMINA DIANO” (“the Applicants”). There is no dispute that the Applicants are “the Trustees” named in the Will as executors and trustees. Affidavits of identity have been filed explaining who each one is.
Before the Application was filed, on 8 September 2021, a caveat against a grant or reseal of probate without prior notice to the caveator was lodged by Elizabeth Dubois stating:
My interest is that I am a daughter of the deceased information is being with-held from me and the executors are not following the directions relating to the Estate of Maria Catena Diano. (sic)
On 13 September 2021 another caveat was lodged by Anna Montgomery stating:
My interest is that I am a daughter of the deceased and it’s the intent of the Executors of MARIA CATENA DIANO ESTATE that my sisters Maria McDonald (dec) share of her inheritance be divided amongst 5 children. As the Executor of my late sister MARIA MCDONALD deceased estate MARIA has only ever rightly acknowledged her four children listed in her will namely:-
Child 1 JASON DAVID MCDONALD
Child 2 BENJAMIN WILLIAM MCDONALD
Child 3 MATTHEW DYLAN MCDONALD
Child 4 LACHLAN DANIEL MCDONALD”
On 22 October 2021, the Registrar granted leave for both caveats to be withdrawn on the application of the caveators. Anna Montgomery swore an affidavit in support of her application to withdraw her caveat saying she wished to withdraw the caveat “as it was not the correct course of action”. Elizabeth Dubois swore an affidavit in support of her application to withdraw her caveat saying she wished to remove the caveat “as it was the wrong course of action”. No details were given.
On 19 January 2022, the Registrar sent the Applicants a requisition, pointing out a number of formal defects in the signing clauses of two of the affidavits of identity and one oath of office, and stating that the draft grant of probate and the affidavits of the executors filed pursuant to Rule 88.23 of the Supreme Court Rules 1987 (NT) should recite the gross value of the estate, all of which presumably have been or will be rectified in due course.
In addition to these matters of form, the requisition also refers to a substantive matter. The list of persons entitled to the estate in the affidavit of assets and liabilities omits any reference to the bequest of jewellery to the granddaughters and daughters in clauses 2 and 3 of the Will. It simply recites the shares of the residue of the estate to which the children of the deceased and the children of the deceased daughter are entitled under clause 5 of the Will. Yet the list of assets of the estate incudes an item: “Furniture, watches and jewellery - $5,280”. The Registrar’s requisition advised the Applicants that the affidavit would need to be amended.
On 20 January 2022, the solicitor for the Applicants, Ms Rene Laan, deposed in a supplementary affidavit:
At clause 2 of the will of MARIA CATENA DIANO dated 18 May 2000 the deceased gifted one piece of jewellery each to her granddaughters who are still alive at the time of her death. I have been advised by ALBERT DIANO that the deceased was the victim of 2 break-ins in 2014 and 2017 and that during the last break-in her valuable jewellery, along with other valuable collectibles were stolen. I verily believe that the gifted jewellery was stolen a few years prior to the deceased’s death.
At clause 3 of the will of MARIA CATENA DIANO dated 18 May 2000 the deceased gifted the remainder of her jewellery in equal measures to her daughters Carmina Diano, Maria Diano, Anna Diano and Elizabeth Diano. I have been advised by ALBERT DIANO that the remainder of the jewellery of the deceased was taken and gifted by siblings during the time that the deceased was in hospital prior to her death. I verily believe that the remainder of the gifted jewellery was taken and distributed prior to the deceased’s death.
On 7 March 2022, the Registrar referred the Application to the Court pursuant to s 17(2)(c) of the Administration and Probate Act 1969 (NT) with the following explanatory memorandum.
REFERENCE BY REGISTRAR
I, SALLY JOAN BOLTON, Registrar of Probate, being doubtful whether GRANT OF PROBATE should be granted in this application, which was made by CARMEN RODABAUGH of 4814 Sequoyal Lake Cove, Leland, North Carolina in the United State of America, ANTONIO GUISEPPE DIANO of 16 Ardmore Terrace, Darch in the state (sic) of Western Australia and ALBERT DIANO of 14 Albany Way Seaford Rise in the state (sic) of South Australia, hereby refer, in accordance with section 17 (2) (c) of the Administration and Probate Act, the application to the Court. Noting the following:
1. The estate has a gross value of $728,726.85 and a net value of $254,464 consisting of real estate, furniture, jewellery and other effects. The deceased was 89 years of age and had 8 adult children.
2. The Court is on notice that two of the deceased’s children are intended beneficiaries and interested in the estate as prior to an Application for Probate being filed, Ms Elizabeth Dubois (nee Diano) and Ms Anna Montgomery (nee Diano) each filed, and then withdrew, a caveat. Pursuant to the Will, Ms Dubois and Ms Montgomery are to receive a 1/8th share in the estate.
3. There are 3 applicants, who are also adult children of the deceased.
4. Debts: The Affidavit of Assets and Liabilities refer to Liabilities including, at Item 9, purported debts totalling $50,845, being a Bank SA Settlement loan from Albert Diano ($28,845), Creditcorp loan from Antonio Guiseppe Diano ($13,500), Warrant and Seizure loan from Albert Diano ($8,500). These purported debts are proportionally significant, given the modest size of the estate and the latter debt in particular, is unclear in nature.
5. Jewellery: Paragraphs 2 & 3 of the Will state as follows: (2) I GIVE each of my granddaughters who are still living at my death one piece of jewellery. (3) I DIRECT that the residue of my jewellery be divided equally among my daughters Carmina Diano, Maria Diano, Anna Diano and Elizabeth Diano as tenants in common in equal shares.
6. There is currently indirect evidence from the applicants’ legal representative, Ms Rene Laan, that an applicant, Albert Diano, instructed her that the decease gifted a piece of jewellery to each granddaughter before her death, some jewellery was stolen during break ins at the deceased’s house and the balance distributed between the deceased’s daughters before her passing. See Affidavit of Rene Lann (sic) filed 20 January 2022.
7. Alias of the deceased: The Death Certificate refers to Maria Catena Mesiano. This alias has not been referenced in the header of each of the Court documents filed in these proceedings. This appears to be the deceased’s maiden name. The Death Certificate indicates the deceased married at 15 years of age in Italy and has been predeceased by her husband. One might presume she changed her name upon marriage (sic) her marriage, although this is not directly deposed to by the applicants.
8. Names: The Will has not referenced the legal names, or legal spelling of the names of the three applicants. Each applicant has filed an Affidavit of Identity addressing this issue, in my view satisfactorily.
Applicants’ Legal Names
The Will
Carmen Rodabaugh
Carmina Diano
Antonio Guiseppe Diano
Dino Diano
Albert Diano
Alberto Diano
9. However, the issue is brought to your attention, both for clarity and in case you hold a contrary view.
Dated: 07 March 2022
REGISTRAR
The fact that the deceased is named in the death certificate as Maria Catena Mesiano and that the names of the Applicants are different in the Will and in the Application is of no concern. An affidavit of death has been filed identifying the Deceased as the person named in the death certificate and the Applicants have filed affidavits of identity identifying themselves as the Trustees named in the Will.
The issue relating to the jewellery
The supplementary affidavit of the solicitor is ambiguous. She deposes:
I verily believe that the remainder of the gifted jewellery was taken and distributed prior to the deceased’s death.
It is not possible to determine from that whether there is any jewellery which forms part of the estate. If all of the deceased’s jewellery was stolen in the break-ins and not recovered, or given away by the Deceased before her death, there is nothing for clauses 2 and 3 of the Will to operate on.
If the jewellery was not given away by the Deceased before her death, but was informally appropriated by the Deceased’s children without her consent, then that jewellery will still be an asset in the estate and should be included in the affidavit of assets and liabilities. If that is the case then, that bequest, being a specific legacy, takes effect before the bequest of the residue of the jewellery to the daughters and the granddaughters should be named as those entitled.[3]
In either case, the affidavit of assets and liabilities needs to be amended. If there is no jewellery in the estate, the reference to jewellery in the inventory of property should be removed. If there is jewellery which was not given away by the Deceased in her lifetime, that jewellery should be listed as an asset of the estate.
An amended affidavit of assets and liabilities sworn by the Applicants should be filed and that affidavit should provide as much detail as possible about the manner in which the jewellery ceased to be a part of the estate, in particular specifying whether the jewellery that was not stolen in the break-ins was given away by the Deceased within her lifetime or informally appropriated by the children of the Deceased either before or after the death of the Deceased.
That affidavit and a copy of the Will and the Application should be served on each of the granddaughters of the deceased and each of the daughters who would have been the beneficiaries under clause 3 of the Will, giving them an opportunity to be heard on the Application for probate if they so wish.
The issue relating to the debts to family members
The Applicants should also include in the affidavit of assets and liabilities details of the debts said to be owing by the estate to Albert Diano and Antonio Diano and annex any supporting documentation, to give the beneficiaries an opportunity to be heard on the Application for probate if they so wish.
I make the following directions.
(a)Within 21 days the Applicants are to file an amended affidavit of assets and liabilities containing details of the loans said to be owing to Albert Diano and Antonio Diano, annexing any supporting documentation, and clarifying the situation in relation to the Deceased’s jewellery.
(b)Within a further 21 days the Applicants are to serve a copy of the Application for probate of the Will, the affidavit of assets and liabilities, the further affidavit referred to in (a) and this decision on all of the beneficiaries named in the Will (including the granddaughters of the Deceased).
(c)The matter is listed for mention before me at 9.00 am on Tuesday 31 May 2022.
(d)The Applicants and beneficiaries have liberty to apply.
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[1] (sic)
[2] (sic)
[3]This is subject to a question of construction. It is possible that the bequest to the granddaughters is void for uncertainty in that it does not specify which jewellery is to go to which granddaughter. However, it is not appropriate for the Court to determine questions of construction on an application for probate except insofar as it is necessary for the purpose of determining whether probate should be granted. (Re Smith [1939] VLR 213)
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