Supreme Court
New South Wales
Medium Neutral Citation: Hausfeld v Hausfeld & Anor [2012] NSWSC 989 Hearing dates: 13 August 2012 Decision date: 30 August 2012 Before: White J Decision: 1. Order that the summons be dismissed.
2. Order that the plaintiff pay the defendants' costs as submitting defendants.
Catchwords: WILLS, PROBATE AND ADMINISTRATION - statutory will - application for making of statutory will - application for order for alteration of will by beneficiary - where testator now lacks testamentary capacity - application to alter beneficiaries to prevent plaintiff from acquiring assets that would be available to satisfy judgment debt if unsuccessful in defending Federal Court proceedings against him - court to be satisfied of certain matters before making order - whether alteration reasonably likely to have been made by testator if he had testamentary capacity - additional requirement for order to be appropriate - consideration of policy of law - held not appropriate for court to authorise alteration of will in order to defeat creditors - Succession Act 2006 (NSW) s 22
PRACTICE AND PROCEDURE - procedural fairness - where application for statutory will - application for alteration of will where testator now lacks testamentary capacity - statutory requirement that adequate steps taken to allow representation of all persons with legitimate interest in the application - whether order would adversely affect interests of third party - Succession Act 2006 (NSW) s 18(e)Legislation Cited: Succession Act 2006
Fair Trading Act 1987Cases Cited: Re Fenwick; Application of J R Fenwick; Re Charles [2009] NSWSC 530; (2009) 76 NSWLR 22
BP Australia Limited v Brown [2003] NSWCA 216; (2003) 58 NSWLR 322Category: Principal judgment Parties: Gregory John Hausfeld (Plaintiff)
Neil James Hausfeld (1st Defendant)
Susan Davey (2nd Defendant)Representation: Counsel:
J Taylor (Plaintiff)
Submitting appearance (Defendants)
Solicitors:
Addisons (Plaintiff)
File Number(s): 2012/227898
Judgment
HIS HONOUR: This is an application for leave to make an application for the making of a statutory will. Leave is sought pursuant to s 19 of the Succession Act 2006 for the making of an application for an order under s 18 of the Succession Act for the alteration of a will made by Colin Ross Hausfeld on 10 September 2004. The plaintiff is the son of Colin Hausfeld. Colin Hausfeld is now 91 years of age. He lacks testamentary capacity. His general practitioner reports that Colin Hausfeld is suffering from dementia and is totally disorientated with respect to person, place and time. He would not be capable of making a decision regarding his will.
Colin Hausfeld's wife died on 6 January 2010. He has three children, Gregory (the plaintiff), Neil and Susan. Gregory is married to Frances Mary Hausfeld. They have been married for 25 years.
The approximate current value of Colin Hausfeld's estate is about $340,000.
Colin Hausfeld made a will on 10 September 2004. In the events which have happened, namely the death of Colin's wife, the will leaves his estate to each of his children in equal shares.…
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- AGLC
- Hausfeld v Hausfeld [2012] NSWSC 989
- Case
- [2012] NSWSC 989
- Decision Date
CaseChat Overview and Summary
The court found that the statutory requirement to consider whether the alteration would reasonably likely have been made by the testator if he had testamentary capacity was a crucial element, but not the sole determinant. The court also considered the policy of the law, which discourages the use of will alterations to defeat creditors. The court concluded that the alteration was not appropriate because it would contravene the public policy against using will alterations to defeat creditors. Furthermore, the court determined that the application did not adequately address the interests of the third party, thereby failing to meet the statutory requirement for procedural fairness under the Succession Act 2006 (NSW) s 18(e).
Consequently, the application to alter the will was dismissed. The court held that the alteration was not reasonably likely to have been made by the testator if he had testamentary capacity and that the alteration would defeat creditors, which was against public policy. The court also found that the application did not adequately consider the interests of the third party, thus failing to comply with the statutory requirement for procedural fairness. The orders made by the court were that the application to alter the will was dismissed, and no further applications would be entertained without the leave of the court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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