Hausfeld v Hausfeld & Anor [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