Egan v O'Brien [2006] NSWSC 1398 | Case summary

3703/06 - EGAN v O'BRIEN JUDGMENT 1 HIS HONOUR: This is a summons to construe the last will of Robert Englart who died on 13 February 2003. Before he died Mr Englart made his last will on 12 July 2002 probate of which was granted to the plaintiff by this Court on 30 September 2003. 2 The problem arises with the gift of residue where the testator provided that it was to pass: "To my friend SHANE ALAN O'BRIEN provided that should he predecease me then I GIVE DEVISE AND BEQUEATH the said rest and residue of my estate to the SALVATION ARMY (NEW SOUTH WALES) PROPERTY TRUST for its general purposes....". 3 Mr Englart died leaving an estate with residue of approximately $253,000. He was killed in circumstances where the beneficiary, Shane O'Brien was convicted of his manslaughter. 4 Under the law, if a beneficiary under a will is convicted of murder or manslaughter of the testator that person cannot take any benefaction under the will. Accordingly, the gift to Mr O'Brien does not operate or alternatively operates so that, at law, he would be entitled to be paid the money by the plaintiff, but, in equity, he would hold it on trust for the person next entitled. 5 The plaintiff is not sure what to do so has commenced these proceedings naming Mr O'Brien as first defendant, the Salvation Army as second defendant and the deceased's father, his next of kin, as third defendant. 6 The first defendant has never appeared and the second and third defendants have filed submitting appearances so that it has been the task of the plaintiff, well represented by Mr Armfield of counsel, to put to the Court all the various possibilities and the authorities which consider those possibilities. 7 There appear to be four possibilities. First, the interest that would otherwise pass to the first defendant is held by him on constructive trust for the person considered appropriate by the Court and if there is insufficient evidence for that, then the next of kin as on intestacy; see eg Public Trustee v Hayles (1993) 33 NSWLR 154. Secondly, the property passes as on intestacy; see eg Ekert v Mereider (1993) 32 NSWLR 729. Thirdly, that the estate should be distributed on the basis of lapse as if the killer died immediately before the testator; see eg Re Stone [1989] 1 Qd R 351. Fourthly, the rule in Jones v Westcomb (1711) Prec Ch 316; 24 ER 149 applies and that is that one should read the condition on which the gift over was to apply as if it extended as well to all other situations where the primary gift failed. 8 I have with Mr Armfield's assistance reviewed a large number of authorities: unfortunately they are not completely consistent. 9 I thought I thoroughly reviewed the then law when I gave my decision in Hayles. I looked at the various cases up to that point in some detail including the very helpful article by Mr Roland (one of the authors of the NSW Probate Practice) on the Construction and Rectification of Wills in (1993) 1 Australian Property Law Journal pp 87 and following. In that article Mr Roland pointed out that there is a problem with the Court currently being powerless to act where things have happened that the testator never contemplated and that without legislative enactment the Court often has to come to a result reached on technical grounds which may very well not reflect the true intentions of the testator. 10 The rule in Jones v Westcomb is rather ephemeral because it was a decision of Harcourt LK, given 31 October 1711, reported in Prec Ch 316; 24 ER 149. The report merely says that the Lord Keeper delivered an opinion that although the condition set out in the will had not taken place, yet the devise to take effect on the happening of that condition still operated. The principle in the case has been considered by more modern authority as having a fairly wide operation. The rule in Jones v Westcomb as it is now known, has been applied so that if one has a gift which is to take effect only on one possible reason for failure of an anterior gift the Court may on the whole of the will construe it as coming into effect on any event which prevents the primary gift from taking effect; see eg Union Trustee Co of Australia Ltd v Church of England Property Trust Diocese of Sydney (1946) 46 SR (NSW) 298 at 306 per Nicholas CJ in Eq following the decision of Re Fox [1937] 4 All ER 664. 11 In Hayles I took the view the mere fact that there was in the will an alternate gift to take effect if the primary donee predeceased the testator was insufficient of itself to bring in the rule in Jones v Westcomb. I said, however, that if there were admissible evidence to show that the testator's intention was that the gift over would operate in a wider set of situations than that specifically stated then the Court would order that the primary beneficiary hold the estate on that trust. 12 The correctness of that view has been debated before me. There appear to be a number of authorities which support it, but also a number of authorities in which the rule in Jones v Westcomb has been applied in a wider class of situations than where there is additional evidence as to the testator's intentions. 13 It is necessary to look briefly at the main cases which support the proposition I put in Hayles. 14 In Re Robertson (1963) 107 Sol Jo 318, Karminski J had to deal with a case where the primary beneficiary murdered a testator. The next of kin claimed under the will. The murderer's adopted daughter was to be the beneficiary. Karminski J said that the testator could hardly have thought of the contingency that his friend might murder him and the Court would not be justified in treating the words of the gift over as applying generally. 15 In Re Lentjes [1990] 3 NZLR 193, Heron J again had to deal with a case where the gift was given to a de facto husband who murdered the testatrix and there was a gift over in the event of the murderer predeceasing the testatrix. The Judge recognised that in some cases where a gift in a will fails by operation of law, the Court may be able to accommodate the testator's intent if the intent is encompassed in the structure of the will. However, in Lentjes' case, it could not be said that the testatrix would have contemplated that her de facto husband would murder her. Accordingly, as in Robertson, the property passed as on intestacy. 16 In Davis v Worthington [1978] WAR 144, Wallace J had to deal with a case where the will said if (the murderer) does not survive me for 14 days then and in that event only certain things were to happen. That seems to me to be a clear case where the rule in Jones v Westcomb could not apply and I do not consider it of any guidance to this case. However, I should note that both in that case and indeed in Justice Windeyer's decision in Ekert, it was said that the opinions of eminent text writers and of judges such as Vaisey J in Re Callaway [1956] Ch 559 were wrong and that there was no support in the authorities for the proposition that one must treat the murderer of the deceased as if he had predeceased the testator. This causes me some concern. The mere fact that Vaisey J said it in Re Callaway and it was so stated in works of great authority such as the 4th edition of Williams on Wills (Butterworths, London, 1974) p 54, itself gives the proposition authority. However, it is to be noted in the 7th edition (1995) of Williams on Wills (Vol 1, p 91) that that particular proposition has been omitted. 17 The most recent English case of relevance appears to be in Re DWS Deceased [2001] Ch 568. There the deceased and his wife were murdered by their son. They were survived by descendants of that son. Sedley LJ held in the circumstances because the remote relatives were descendants of the murderer, the whole estate passed as on bona vacentia, but the majority held that the estate should pass on intestacy. 18 There have been recent decisions in Queensland dealing with the point such as Re Rowney, a decision of Cooper J, 19 March 1992, unreported; Re Nicholson [2004] QSC 480, a decision of Atkinson J and Verrall v Jackson [2006] QSC 309, a decision of Wilson J. The decision of Wilson J is the latest of the recent cases on the issue, it is a very informative judgment and review of the cases. There the gift to the primary beneficiary was void because she was an attesting witness to the will. There was a gift over if the primary beneficiary predeceased the testator. Her Honour was asked to apply the rule in Jones v Westcomb which she held at [97] was not applicable. 19 It seems to me that the approach taken by the McPherson J in Re Stone, that is to treat the disqualification of the murderer as if the murderer predeceased the testator is not now, on the authorities, able to be supported. It seems to me too that I cannot as I could not in Hayles' case, fully endorse the approach taken by Windeyer J in Ekert's case although our differences are perhaps more philosophical than real. 20 The question really comes down to whether one can apply the rule in Jones v Westcomb where there is nothing in the will other than the mere gift over, as allowing the Court to read those words as if they covered any eventuality under which the primary gift did not take effect. I feel that the testator would have wished in the events which have happened that his secondary gift take effect. However, the authorities such as Ekert make it clear that the Court is not to interpret the will merely to obtain a result which the Court considers fair. In Hayles I analysed the cases to that date and said that a feeling that it might be very unfair that the second gift in the will did not take effect was insufficient in the absence of other evidence despite the fact that Jones v Westcomb has been applied more liberally in some cases. It seems to me that the whole thrust of the authorities, though with some exceptions, is that what I said in Hayles is correct. 21 Accordingly although I have doubts about the matter and was swayed by Mr Armfield's advocacy for a while, I believe I should follow what I said in Hayles. Thus, the property passes to the first defendant who holds it on trust for the next of kin, namely, the third defendant, the deceased's father. If the third defendant wishes to give part of that to the Salvation Army that is a matter for him. 22 Because the first defendant is in gaol, it seems to me that I should also make an order vesting the interest in the third defendant so that I declare on the true construction of the will of the late Robert Englart and in the events which have happened, the plaintiff holds the residue of the estate on trust for the third defendant. 23 I order that the costs of the plaintiff on the trustee basis and the costs of the submitting defendants be paid out of the said residue.

Egan v O'Brien

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