Hussey v Bauer

Case [2011] QCA 91

SUPREME COURT OF QUEENSLAND

CITATION:

Hussey & Anor v Bauer & Ors [2011] QCA 91

PARTIES:

CAROLEANN HUSSEY & HELEN RAE GERDEI
(appellants)
v
BREN OWEN BAUER & ROD ANDREW BAUER & GAY ANN O’NEILE
(respondents)

FILE NO/S:

Appeal No 9255 of 2010
SC No 6029 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2011

JUDGES:

Fraser and Chesterman JJA and Martin J
Separate reasons for judgment of member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – JOINT AND MUTUAL WILLS – where in 1973 Thelma Bauer became the sole registered proprietor of a property in Buderim – where in 1984 Walter Bauer became the sole registered proprietor of a unit in a complex in Mooloolaba – where Walter Bauer and Thelma Bauer each executed a will on 22 August 1984 – where the two wills were, apart from the identity of the executors and trustees, identical – where the two wills were prepared by the same firm of solicitors, executed at the same time and in the same place – where Walter Bauer died and had not revoked his 1984 will – where in 1995 Thelma Bauer executed a new will – where in 1996 Thelma Bauer executed a memorandum of transfer, transferring title in the Buderim property to her daughters as tenants in common – where in 1997 Thelma Bauer executed a further will and left the Mooloolaba unit to the appellants with the residue of her estate to the respondents – where the appellants argue that the learned trial judge erred in law when he found that Walter and Thelma Bauer had an agreement to make mutual wills – where the appellants argue that each will contained an unfettered discretion which was incompatible with such an agreement – where the appellants argue that the learned trial judge made significant errors when considering the respondent’s evidence which vitiated his finding of fact – whether the learned trial judge erred in law when he found that an agreement to make mutual wills had been made

Bigg v Queensland Trustees Limited [1990] 2 Qd R 11, cited
Birmingham v Renfrew (1937) 57 CLR 666; [1937] HCA 52, considered
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, cited
Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; [2003] HCA 49, cited
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78, cited
G v H (1994) 181 CLR 387; (1994) 124 ALR 353; [1994] HCA 48, considered
Gianoutsos v Glykis (2006) 65 NSWLR 539; [2006] NSWCCA 137, cited
Gray v Perpetual Trustee Co Ltd (1928) 40 CLR 558; [1928] UKPCHCA 1,…

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AGLC
Hussey v Bauer [2011] QCA 91
Case
[2011] QCA 91
Decision Date

CaseChat Overview and Summary

In Hussey v Bauer, the respondents, who are the children of Walter Bauer, challenged the validity of an agreement between Walter and Thelma Bauer to make mutual wills, arguing that the wills each contained an unfettered discretion that was incompatible with such an agreement. The dispute arose after Thelma Bauer's death, where she had executed a will in 1997 leaving her Mooloolaba unit to the appellants, contrary to the terms of the 1984 mutual wills. The appellants argued that the trial judge had erred in finding that an agreement to make mutual wills had been made, and that the trial judge had made significant errors when considering the respondents' evidence, leading to a flawed finding of fact.

The central legal issues were whether the trial judge had correctly found that an agreement to make mutual wills had been made, and whether the presence of an unfettered discretion in each will was incompatible with such an agreement. The court considered the circumstances of the execution of the wills, the evidence presented by both parties, and the nature of the agreement between the Bauers. The court also had to determine whether the trial judge had made any significant errors when evaluating the respondents' evidence.

The court found that there was substantial evidence to support the trial judge's conclusion that an agreement to make mutual wills had been made. The wills were executed at the same time, in the same place, and by the same firm of solicitors, which strongly suggested a coordinated effort. The court also noted that the wills were identical except for the names of the executors and trustees, further supporting the existence of a mutual agreement. The court rejected the appellants' argument that the presence of an unfettered discretion in each will was incompatible with such an agreement, finding that this did not necessarily negate the existence of a mutual agreement. The court also found that the trial judge had not made any significant errors in considering the respondents' evidence.

The appeal was dismissed with costs, affirming the trial judge's findings and the validity of the mutual wills.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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