Re The Statutory Will of Rolf Huenerjaeger [2020] NSWSC 1190

Supreme Court New South Wales

Medium Neutral Citation: Re The Statutory Will of Rolf Huenerjaeger [2020] NSWSC 1190 Hearing dates: 26 June 2020; 8 July 2020 and 31 August 2020 Date of orders: 2 September 2020 Decision date: 02 September 2020 Jurisdiction: Equity Before: Hallen J Decision: The Court: (1) Orders, pursuant to s 19 of the Succession Act 2006 (NSW) (the Act), that the Plaintiff have leave to apply for an order under s 18 of the Act. (2) Orders pursuant to s 18 of the Act, that a Will be made on behalf of Rolf Huenerjaeger, the person lacking testamentary capacity, in the form set out in Ex SW1 ("the Statutory Will"). (3) Orders pursuant to s 23(1)(b) of the Act, that the Registrar be authorised and directed to sign, and seal with the seal of the Court, the Statutory Will. (4) Orders that the matter be remitted to the Registrar to sign, and seal with the seal of the Court, the Statutory Will. (5) Orders that the Plaintiff's costs, calculated on the indemnity basis, of the proceedings be paid out of the estate of Rolf Huenerjaeger. (6) Orders that these orders be entered forthwith. Catchwords: SUCCESSION – Statutory wills, Succession Act 2006 (NSW), ss 18 , 19, 22 – Incapacitated person has lost capacity to make Will – Application seeking leave to apply for, and then, an order authorising, a Will to be made on behalf of the person lacking testamentary capacity – Earlier Will made in 1967 in which whole estate divided between the Plaintiff and the incapacitated person's mother – Mother predeceased the incapacitated person – Location of original Will not known – Whether a will in accordance with that proposed by the Plaintiff who is the long-time friend and partner, and would be the only beneficiary, named in the Will, but with a substitutionary clause leaving the whole of the estate to a cousin of the Plaintiff, in the event that the Plaintiff does not survive the deceased, or survive the deceased by 30 days, is, or is reasonably likely to be, a will that would have been made by the person who lacks testamentary capacity if he had that capacity – Court not satisfied that an authorised Will should include a substitutionary clause gifting the estate to the Plaintiff's cousin, but orders, ex abundanti cautela, for a Will without the substitutionary clause, save for a clause appointing a substitute executor, as the proposed statutory Will to be made. Legislation Cited: Succession Act 2006 (NSW), ss 18, 19, 20, 21, 22, 23, 24, 25, 57, 104, Sch 1 cl 3 Cases Cited: A Ltd v J (No 2) [2017] NSWSC 896 AB v CB [2009] NSWSC 680 Application by Peter Leslie Kelso [2010] NSWSC 357 Argiro v Lagozino [2017] SASC 185 Banks v Goodfellow (1870) LR 5 QB 549 Boulton v Sanders (No 2) [2003] VSC 409 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Burns v The Estate of Troy Mitchell Burns, a Protected Person (2013) 11 ASTLR 362; [2013] NSWSC 1550 Cahill v Rhodes [2002] NSWSC 561 Department of Agriculture and Rural Affairs v Binnie [1989] VR 836 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82; [1984] FCA 167 Hill v Hill (No 2) [2001] VSC 135 In the Matter of K, JL [2016] SASC 53 Ireland v WG Riverview Pty Ltd [2019] NSWCA 307 Jeavons v Chapman (No 2) [2009] SASC 3 McCauley v McCauley (1910) CLR 434 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Phillips v Small [2020] HCATrans 096 Re M's Codicil [2018] NSWSC 936 Re MP's Statutory Will [2019] NSWSC 331 Re The Will of Alexa [2020] NSWSC 560 Re The Will of Bridget [2018] NSWSC 1509 Re Will of Jane [2011] NSWSC 624 Re Will of Jane [No 2] [2011] NSWSC 883 Roberts v Balancio (1987) 8 NSWLR 436 Secretary, Department of Family & Community Services v K (2014) 14 ASTLR 419; [2014] NSWSC 1065 Small v Phillips (No 2) [2019] NSWCA 268 Small v Phillips (No 3) [2020] NSWCA 24 Sportsbet Pty Ltd v New South Wales (No 9) [2010] FCA 31 Welch v Phillips (1836) 1 Moo PCC 299 Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of NSW, Powell J, 13 May 1993) Texts Cited: New South Wales Law Reform Commission, Wills for Persons Lacking Will-Making Capacity, (February 1992) Category: Principal judgment Parties: Raymond Charles Bryant (Plaintiff) Representation: Counsel: L J Ellison SC (Plaintiff)