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

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

The Court was satisfied that Rolf Huenerjaeger lacked testamentary capacity, that the Plaintiff was an appropriate person to apply and that no other person had a legitimate interest in the application. The Court held there was insufficient evidence that Rolf intended to benefit anyone other than the Plaintiff (as per the 1967 Will) and was not satisfied a substitutionary clause benefiting the Plaintiff's cousin should be included. The Court ordered, ex abundanti cautela, the making of a statutory will benefitting only the Plaintiff, and the appointment of NSW Trustee and Guardian as alternate executor, to ensure the estate would pass in accordance with Rolf's likely intentions if the...

Jurisdiction
Australia
Judgment Date
02 September 2020
Procedural Posture
Application for Statutory Will / Final Judgment and Orders
Outcome
Application allowed in part; orders made for making of statutory will limited to benefitting Plaintiff only; costs out of the estate.
Legal Topics
['statutory Wills' 'succession' 'testamentary Capacity']
['equity'] ['statutory Wills' 'succession' 'testamentary Capacity']

Case Brief

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Procedural Posture

Application for Statutory Will / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the Plaintiff should be granted leave to apply for a statutory will under s 18 of the Succession Act 2006 (NSW) on behalf of Rolf Huenerjaeger' 'Whether the statutory will proposed is or is reasonably likely to be one that would have been made by Rolf Huenerjaeger if he had testamentary capacity' 'Who is an appropriate person to apply and what persons should be notified or separately represented']

Ratio Decidendi

The Court was satisfied that Rolf Huenerjaeger lacked testamentary capacity, that the Plaintiff was an appropriate person to apply and that no other person had a legitimate interest in the application. The Court held there was insufficient evidence that Rolf intended to benefit anyone other than the Plaintiff (as per the 1967 Will) and was not satisfied a substitutionary clause benefiting the Plaintiff's cousin should be included. The Court ordered, ex abundanti cautela, the making of a statutory will benefitting only the Plaintiff, and the appointment of NSW Trustee and Guardian as alternate executor, to ensure the estate would pass in accordance with Rolf's likely intentions if the...

Court Disposition

Application allowed in part; orders made for making of statutory will limited to benefitting Plaintiff only; costs out of the estate.

Orders

  • ['Plaintiff granted leave under s 19 Succession Act 2006 (NSW) to apply under s 18.' 'A will be made on behalf of Rolf Huenerjaeger in the form set out in Ex SW1 (without substitutionary beneficiary clause).' 'Registrar authorised and directed to sign and seal the statutory will pursuant to s 23(1)(b).' 'Matter...