In the recent judgement of Savage v Savage [2023] QSC 280 handed down yesterday, the Court was sought to interpret the gift-over provision in a Will of a murdered father.
By way of background, the deceased died on 17 July 2000, having been murdered by his daughter, who was later convicted of that crime. The deceased had three children, one of which predeceased him leaving two children. The application to the Court was made by the deceased surviving son and the respondents were the deceased’s daughter, her three children (as potential beneficiaries, pending the outcome of the matter) and the deceased’s two other grandchildren (who were the children of his deceased’s son).
Relevantly, the deceased left a Will leaving his whole estate to his three children equally and contained the following clause which was the subject of the application:
“[I]n the event of any such child of mine predeceasing me and leaving issue then such issue shall take and if more than one equally between them the share to which his her or their parent would have been entitled under this my Will”.
Following the well-established principles of forfeiture, in that a person who is responsible for the death of another cannot then inherit from that person they killed, the deceased’s daughter forfeited her interest in her father’s estate by murdering him.
Simply put, the questions that were the subject of the application were, given the deceased’s daughter didn’t technically predecease the testator (as required by this clause), but was otherwise disinherited through the operation of the forfeiture rule, what now happens to her share of the estate? Does it now go to her children, or does it get distributed to the other beneficiaries of the Will? If so, how?
The Court noted the principal reason for such gift-over provisions to be placed in wills was to avoid the ‘doctrine of lapse’ and providing an opportunity for the deceased to provide a contingency plan for another beneficiary to take that gift on the happening of an event. Noting that a literal interpretation would simply mean that if that, and only that, event didn’t happen, then the contingency wouldn’t apply, and the gift would fail. This is an approach that has indeed been taken in many cases over the years.
The Court called into consideration the rule in Jones v Westcomb which allowed for the gift-over to be saved in ‘any’ circumstance (arguably intended), and not just that that is articulated in the will (i.e death of the primary beneficiary). Although noting this case, the Court also acknowledged that the scope of Jones v Westcomb ‘remains elusive‘ (para 10).
In considering the application of Jones v Westcomb in this case, the Court adopted the approaches taken in Re Edwards; State Trustees Ltd v Edwards [2014] VSC 392 and Re Fox’s Estate [1937] 4 All ER 664 and quoted, from the former, the following passage:
“The requirement that only contingencies upon which the testator must a fortiori have intended the gift over to operate are saved by the rule ensures that the Court does not impute an intention to the testator that is not supported by the tenor of the will in the light of any admissible extrinsic evidence. The exception to the general rule, that a gift over upon a certain contingency will not take effect unless the exact contingency occurs, is restricted to a fortiori contingencies.”
Quoted at para 14 of this judgement.
Relevantly, the matter of Re Edwards mentioned above also dealt with the matter of the homicide of the deceased person at the hands of the primary beneficiary. The Court also quoted further from the judgement and said: “it is difficult to imagine circumstances where the intention that a gift over should operate upon the primary beneficiary’s predeceasing the testator could encompass the contingency of the testator’s being killed by the beneficiary” (quoted at para 12).
The Court considered the comments by Windeyer J in Ekert v Mereider that the rule in Jones v Westcomb could not be used to form a result that the Court thinks is fair, nor can it presume the intention of a testator. Importantly, that case also involved a question of whether the child of the murderer responsible for the death of the deceased should inherit. The Court followed this reasoning and determined that the rule in Jones v Westcomb did not apply to this case.
The Court held that there was no basis to allow the inheritance to pass to the children of the deceased’s murderer and ordered for the half the interest to be distributed to the other son of the deceased and one-quarter each to the other grandchildren of the deceased (i.e. the children of the deceased’s son who predeceased him).
You can read the short judgement here.
