Hausfeld v Hausfeld

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.