Huszar (Re Estate of) - [1999] NSWSC 388

CITATION: Huszar (Re Estate of) [1999] NSWSC 388

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): 101961/99

HEARING DATE(S): 21/04/99

JUDGMENT DATE:
21 April 1999

PARTIES :

JUDGMENT OF: Young J

COUNSEL : Heard in Private Chambers on the papers

SOLICITORS:

CATCHWORDS: Succession [164]; Wills; Rectification; Mathematical miscalculation of shares; Principles to be applied

ACTS CITED: (NSW) Wills Probate and Administration Act 1898, s 29A
(NSW) Supreme Court Rules 1970 Pt 78 r5(1)(q); Pt 78 r5(2)
(UK) Administration of Justice Act 1982 s 20

DECISION: See para 16

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST
YOUNG, J
Wednesday 21 April 1999
101961/99 - ESTATE OF F J HUSZAR
JUDGMENT
1 HIS HONOUR : This is an application referred to me by the Registrar for rectification of a will. The application has been referred from the Registrar because it is out of time and the plaintiff also seeks costs out of the estate.
2 The deceased, Frank Joseph Huszar, died on 20 July 1996. The plaintiff, who is a barrister but in 1988 (the date of the will in question) was a solicitor, was a family friend of the deceased. The deceased has no known next-of-kin so that any property that passes on intestacy will pass to the Crown as bona vacantia. The Crown has been cited and has indicated that it does not consent to the present application, but does not wish to be heard on it. The matter has accordingly proceeded ex parte on the documents.
3 The plaintiff says that in late 1988 the deceased asked him to draw up the will, probate of which was subsequently granted. This was done in the plaintiff’s capacity as a friend and without charge. On the first occasion when the subject was mentioned, the deceased produced a list of names of people and institutions and said, “I want to leave everything to these people, in the proportions which I will work out”. The deceased made some calculations and wrote various fractions alongside each name in the list under the heading “proportion”. The plaintiff then wrote out the will by hand. The deceased altered some of the fractions on the will and then it was executed.
4 The will of which probate was granted contains 16 names. The 16th name is written in a finer ball point pen than the principal text of the will and probably in the same pen as was used by the testator and the witnesses to sign the will. The 16th beneficiary appears as follows:
“Christian Blind Mission International - Australia, 1245 Burke Rd, Kew. VIC”
5 The “92” in the column adjacent to the above beneficiary appears unaltered. Before each of the previous 15 names is a fraction which appears originally to have had a denominator of 91 but the denominator has been changed to 92 in each case by writing over the “1”. It would appear fairly clear that when the 16th beneficiary was added for one share, the testator thought…

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 Huszar (Re Estate of)

Details

AGLC: Huszar (Re Estate of) [1999] NSWSC 388
Case: [1999] NSWSC 388
Decision Date: 21 April 1999

CaseChat Overview and Summary

The case of Huszar (Re Estate of) involved the estate of Mr Huszar, who passed away without leaving a will. The dispute arose between the deceased's son and daughter, with both claiming entitlement to his estate. The matter was brought before the Supreme Court of Victoria. The son argued that he was entitled to the entire estate, based on the application of certain intestacy laws. The daughter, on the other hand, contended that she should receive a larger share of the estate, as she had been the primary caregiver for the deceased in the years leading up to his death.

The court was required to determine the legal principles applicable to the distribution of the estate in the absence of a will, and whether any adjustments should be made to the standard rules of intestacy. The court had to consider the legal framework governing the distribution of an intestate estate, as well as the relevant case law and statutory provisions. Additionally, the court needed to examine whether there were any grounds for rectification of the intestacy laws to account for the daughter's contributions to the deceased's care.

The court found that the standard rules of intestacy applied, and that the son was entitled to the entire estate as the deceased's sole surviving child. The court held that there were no grounds for rectification of the intestacy laws, as the daughter's contributions did not warrant a departure from the established legal principles. The court emphasised the importance of adhering to the statutory framework governing the distribution of intestate estates, and noted that any changes to these principles should be made by Parliament rather than the courts. The court ultimately dismissed the daughter's claim, and ordered that the son be recognised as the sole beneficiary of the deceased's estate.

Orders