Debbie Anne Oates v Hubertus Peter Breuer - [2011] NSWSC 1354

Supreme Court

New South Wales

Medium Neutral Citation: Debbie Anne Oates v Hubertus Peter Breuer [2011] NSWSC 1354
Hearing dates: 3 and 4 November 2011
Decision date: 04 November 2011
Jurisdiction: Equity Division - Probate List
Before: Bryson AJ
Decision:
Probate granted of copy of lost will. Family Provision claim dismissed. See [59], [65].

Catchwords: SUCCESSION - Probate - lost will - deceased communicated through her sister with her solicitor for will to be prepared - solicitor was (long estranged) husband of sister - will contained significant benefits for sister - husband not informed of will although relationship was good - suspicious circumstances required vigilant consideration of evidence of solicitor and of sister - found that their evidence should be accepted and the will expressed intentions of the deceased - dispositions in will were proved by electronic copy - found, evidence of sister and of solicitor accepted, copy admitted to probate. Decision on facts.
FAMILY PROVISION - claim by husband - deceased wife left ING deposit $265,601.78 to her sister - other minor assets worth several thousand dollars - husband aged 57 sought Family Provision order - after long career with Qantas as baggage handler, now on light duties after severe permanent work injury to shoulder - low income, less than outgoings - superannuation $319,836, to retire in 4.5 years - owned town house worth $505,000 and beach house worth $590,000 - no significant savings or debts, no dependants - held, not left without adequate provision, order refused.
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Nock v Austin (1918) 25 CLR 519
Blundell v Curvers [1999] NSWCA 421
Texts Cited: Nil
Category: Principal judgment
Parties: Debbie Anne Oates (Plaintiff)
Hubertus Peter Breuer (Defendant)
Representation: DM Flaherty (Plaintiff)
AL Hill (Defendant)
Boyd Lawyers (Plaintiff)
Foulsham & Geddes Solicitors (Defendant)

File Number(s): 2011/198206

Judgment

These proceedings relate to the estate of the late Tammy Maree Breuer, late of Kingsgrove, who died on 25 February 2011 at St George Private Hospital aged 51 after suffering recurring cancers. The plaintiff is one of the sisters of the deceased and sues in solemn form for probate of a document of 21 September 2010, which the plaintiff claims was the deceased's last will and testament. The plaintiff's evidence shows that the will document was executed in the presence of two witnesses, who were hospital staff in the reception area of the Cancer Clinic at St George Private Hospital. The evidence of the attesting witnesses has not been challenged and shows that the document was executed in due form by the deceased as her will in their presence, attested and signed.

A primary difficulty is that the plaintiff is unable to produce that document and claims that it is lost but that its terms can be proved exactly by an electronic copy and she seeks probate of the copy. I regard it as clear that the document put forward in the Statement of Claim and produced with the plaintiff's affidavit is an electronic copy of the…

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.

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Details

Case: [2011] NSWSC 1354
Decision Date: 04 November 2011

CaseChat Overview and Summary

Debbie Anne Oates died intestate, leaving a dispute over the validity of her will which was sought to be admitted to probate by her sister. Hubertus Peter Breuer, the deceased's estranged husband, challenged both the validity of the will and the dispositions made in it, arguing that it did not properly represent the deceased's intentions. The court had to determine whether the will was validly executed and whether it truly reflected the deceased's wishes.

The court examined the circumstances surrounding the creation of the will, focusing on the relationship between the deceased and the solicitor who drafted the will, who was also the estranged husband of the deceased's sister. The court scrutinised the evidence provided by the sister and the solicitor, considering the suspicious nature of the will and the significant benefits it conferred upon the sister. Ultimately, the court found that the evidence supported the validity of the will and that it accurately reflected the deceased's intentions. The court admitted the electronic copy of the will to probate.

Regarding the family provision claim, the court found that the deceased's husband was not left without adequate provision for his maintenance, support, and benefit. The husband, despite his low income due to a work injury, had significant assets including two properties and superannuation. The court noted his relatively young age and the short time until his planned retirement, concluding that he was not left in a position where he was not adequately provided for. Consequently, the court refused the husband's claim for a Family Provision order.

Orders