Hausfeld v Hausfeld - [2012] NSWSC 989

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 1987
Cases 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 322
Category: 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.…

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 Hausfeld v Hausfeld

Details

AGLC: Hausfeld v Hausfeld [2012] NSWSC 989
Case: [2012] NSWSC 989
Decision Date: 30 August 2012

CaseChat Overview and Summary

In the case of Hausfeld v Hausfeld, the applicant sought to alter the will of the deceased, who lacked testamentary capacity, to prevent the plaintiff from acquiring assets that could be used to satisfy a judgment debt if unsuccessful in defending Federal Court proceedings. The matter was heard in the Supreme Court of New South Wales. The primary legal issue was whether it was appropriate for the court to authorise an alteration of the will to defeat creditors, in light of the statutory requirements and policy considerations under the Succession Act 2006 (NSW). Additionally, the court needed to determine if the statutory requirement for adequate steps to allow representation of all persons with a legitimate interest in the application had been met, particularly considering the potential adverse effect on the interests of a third party.

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