Permanent Trustee Company Ltd v Gillett

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3973/02 PERMANENT TRUSTEE COMPANY LTD V GILLETT JUDGMENT 1 HIS HONOUR: The plaintiff ("Permanent") is the executor and trustee named in the will of Keith Gillett ("the deceased"), who died on 15 April 1998. The deceased left his estate, which was valued at about $294,000, in equal half shares, respectively for the second defendant and upon discretionary trusts for the benefit of the first defendant. The circumstances of his death have raised concerns as to whether the distribution of the estate is affected by the so-called "forfeiture rule". 2 Permanent has brought this proceeding to establish whether the rule applies. The first defendant is the deceased's son and the person against whom the rule may apply. The second defendant is the daughter of the deceased and the third defendant is the widow. For convenience, and without intending disrespect, I shall refer to the three defendants by their first names, Christian, Ingrid and Ailsa. 3 Permanent's summons seeks a determination pursuant to Part 68 rule 2 of the Supreme Court Rules of the question whether, in the circumstances of the case, the plaintiff is entitled to administer the fund constituted under clause 3.2 of the deceased's will without regard to allegations which would, if true, attract the operation of the forfeiture rule. Part 68 rule 2 allows a proceeding to be brought for the determination of any question which could be brought in an administration proceeding, including any question arising in the administration of an estate, and any question as to the rights of a person claiming to be entitled under the will of the deceased. 4 In my opinion it is appropriate for an executor to raise the question of application of the forfeiture rule in a proceeding constituted under Part 68 rule 2. For reasons that I shall explain, there is sufficient uncertainty here as to the application of the forfeiture rule that it is entirely reasonable for Permanent to take the view (as it has) that it is not in a position to reach a conclusion as to the application of the rule, and that it should seek the Court's assistance. 5 Christian's affairs have been managed by the Protective Commissioner of New South Wales since 1993, under an order of the Mental Health Review Tribunal pursuant to the Protected Estates Act 1983 (NSW). He appears in the present proceeding by the Protective Commissioner as his Tutor. He has filed a cross-claim against Permanent in which he seeks: 1. a declaration that his father's death did not invoke the operation of the forfeiture rule; 2. in the event that the forfeiture rule operates so as to disentitle him from taking an interest under his father's will, an order under s 5 of the Forfeiture Act 1995 (NSW) modifying the effect of the forfeiture rule so that Christian will take the whole of the interest he would have taken under the will if the forfeiture rule did not apply; 3. additionally, orders under the Family Provision Act 1982 (NSW), extending the time within which an application for relief may be made and then making provision for him out of his father's estate. 6 Ingrid and Ailsa did not appear at the final hearing of the proceeding and the cross-claim. However, they signed a written acknowledgement of receipt of Christian's notification of claim under the Family Provision Act. There is also evidence that the Protective Commissioner's solicitors wrote to Ingrid and Ailsa on 4 February 2004 making an offer to resolve the case in terms of short minutes of order. Ingrid and Ailsa signed those short minutes of order (which are in evidence) on 11 February 2004. Under the short minutes of order the Court would: (i) declare that the involvement of Christian in the facts and circumstances leading to his father's death was not such as to invoke the operation of the forfeiture rule; (ii) note the agreement of the parties that Permanent would be justified in paying Ailsa $10,000 to reimburse her for monies she has expended for the benefit of Christian; (iii) make provision for Christian under the Family Provision Act by substituting for clauses 3.2 and 3.3 of the will a provision giving Ingrid a legacy of $10,000 out of the second one half share of the estate, and giving the residue to Christian, to be managed on his behalf by the Protective Commissioner. 7 Thus, at the final hearing there was no one before the Court to contend that the forfeiture rule is applicable in this case. Nevertheless, to make the determination sought in the summons and the declaration sought in the cross-claim, it is necessary for me to consider whether the forfeiture rule applies. Facts 8 By his will dated 19 November 1995, after appointing Permanent as his executor and trustee, the deceased gave half his estate to Ingrid, and the other half upon discretionary trusts during the lifetime of Christian, and thereafter to Christian's surviving children, or if there were none, to Ingrid. I shall return to the will in more detail when I consider the benefit issue. Christian has no children. One half of the estate has been distributed to Ingrid, and Permanent has retained the other half. It is represented by a cash sum of about $168,000, from which the costs of this proceeding will need to be deducted. 9 The deceased died at the age of 68. He had been separated from his wife Ailsa for about seven years, but he was on cordial terms with her. At the time of his death, he resided with Christian in rented accommodation in Mona Vale. He was in very poor health. He had lost both of his legs above the knees as a result of peripheral vascular disease. He had acute circulatory problems, which had required surgery, as well as heart disease, hardening and constriction of the arteries, and prostate cancer. He was taking regular medication for his circulatory problems. 10 Christian, who is now 32, had exhibited behavioural changes from the time he was about 14 years old. In 1991 he attacked his mother with an iron bar. While at Long Bay gaol after the attack, he was diagnosed as suffering from schizophrenia. From that time he has been medicated regularly in accordance with a community treatment order. Ailsa became aware at some stage that in the six months before his father's death in April 1998, Christian had taken to alcohol. 11 At about 10:22am on 5 April 1998, the deceased was found in his home at Mona Vale, lying on the floor behind his wheelchair. He was suffering from wounds that had been inflicted by a mattock, which was lying a short distance away. Christian had been seen running from the premises shortly before the deceased was found. When an ambulance was called and the police attended, the deceased told the police that he had been attacked by Christian. 12 The mattock attack produced three penetrating injuries of the skin, tissue and muscle of the upper back of the left chest, and fractured one and possibly two ribs. The deceased survived the mattock attack for a time. He was hospitalised at Mona Vale Hospital until his death 10 days later. There is an issue, on the evidence, as to whether his death was caused by the mattock attack, or by his medical condition, or some unexplained other cause. I shall return to this question under the heading, "the causation issue". 13 Christian was arrested on the day after the attack on his father, when he visited his mother's place of work. The evidence at his subsequent trial was to the effect that he appeared to be delusional at the time of his arrest. He was held in custody and indicted for murder, but the murder charge was ultimately not pursued and he was charged with malicious wounding. According to Greg James J, who presided at the trial without a jury (see R v Gillett [1999] NSWSC 115, 24 February 1999), the murder charge was abandoned because there was "doubt as to whether the death of Keith Gillett was occasioned by the acts of the accused" (Judgment, at [2]). 14 After the hearing of the malicious wounding charge on 24 February 1999, James J held (at [20]) that he was satisfied beyond reasonable doubt that the elements of the offence of malicious wounding had been proven. Medical evidence was presented at the trial that at the time of the attack, Christian was suffering acutely from a psychosis, schizophrenia. After carefully reviewing that evidence, his Honour found (at [21]) that at the time of the mattock attack Christian was "labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing or if he did know it, that he did not know what he was doing was wrong" (citing Regina v M'Naghten (1843) 8 ER 718; Regina v Porter (1936) 55 CLR 182, 188; and s 38 of the Mental Health (Criminal Procedure) Act 1990). The judge therefore returned the special verdict required by s 38, that is that the accused was not guilty by reason of mental illness, and he made the order required by s 39 of that Act, that is, that he be detained in such place and in such manner as the Court thinks fit until released by due process of law. 15 Christian spent some time in the psychiatric ward at Long Bay gaol. About two years ago he was transferred to Rozelle hospital for rehabilitation. At Rozelle hospital he is medicated and detained under psychiatric supervision, sharing a cottage with other forensic patients. He has limited leave privileges, under the supervision of his mother. There is a possibility of conditional release in the future. There is evidence of his needs, and in particular, that he needs a supplement to his existing income for day-to-day living expenses. 16 Probate of the deceased's will was granted to Permanent on 2 July 1998. As I have said, Permanent has distributed half of the estate to Ingrid, in accordance with the will, and retains the other half pending the outcome of this proceeding. The forfeiture rule 17 In its modern formulation, the rule provides that "where a person who would otherwise obtain a benefit by the death of another, has brought about that other's death by a violent means, he shall not be entitled to take the benefit": Troja v Troja (1994) 33 NSWLR 269, 299 per Meagher JA. It is said to be based on public policy, the public policy being articulated by Fry LJ in Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, 156 as follows: "It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person." 18 Fry LJ's observation suggests that the rule applied to unlawful killing may be part of a wider rule, preventing the perpetrator of a crime from benefiting from it: see Helton v Allen (1940) 63 CLR 691, 709-10 per Dixon, Evatt and McTiernan JJ; Troja, at 295 per Mahoney JA. The precise jurisprudential basis of the rule is unclear. The majority in Troja rejected Kirby P's view that the rule is an equitable rule about unconscionable conduct, but they did not put forward any alternative basis for overriding the statutory precepts about revocation of wills. Fortunately, it is not necessary to resolve these uncertainties here. 19 Here, the application of the forfeiture rule depends on the resolution of three issues: (a) whether, for the purposes of the forfeiture rule, Christian is entitled to a benefit under his father's will ("the benefit issue"); (b) whether Christian's violent assault on his father was, for the purposes of the forfeiture rule, an unlawful killing ("the causation issue"); (c) whether the forfeiture rule has no application because of Christian's mental condition ("the mental illness issue"). The benefit issue 20 Christian has not directly received any benefit under the terms of his father's will, but instead, a half share in the estate is held by the Permanent as trustee upon discretionary trusts. The question is whether the forfeiture rule applies in such a case, where the enjoyment of benefits by the perpetrator of the crime is dependent upon the exercise of a discretion by trustee. 21 The relevant provisions of the will are as follows: "3. I GIVE the whole of my estate to my executor on trust to divide it into two equal parts and to deal with those parts as follows: 3.1 … [as to Ingrid's share]. 3.2 as to the other part to invest it and any additions to it (hereafter called the fund) in the manner authorised by this or any other clause of my Will and to deal with the fund as follows: 3.2.1 during the lifetime of my son, CHRISTIAN MATTHEW GILLETT (hereafter called Christian) 3.2.1.1 to pay or apply for the benefit of Christian so much of the income derived from the investment of the fund as my executor shall in its absolute discretion consider necessary for any or all of the maintenance, education, support advancement and benefit of Christian. 3.2.1.2 at the end of each financial year to add any undistributed income to the Fund. 3.2.1.3 in my executor's absolute discretion to pay to or apply for the benefit of Christian the whole or any part of the capital of the fund. 3.2.2 upon the later of my death or Christian's death to add to the fund any remaining income and 3.2.2.1 in my executor's absolute discretion to pay Christian's funeral expenses (including any cemetery or crematorium expenses and the provision of a suitable memorial) 3.2.2.2 to divide the balance of the Fund equally among those of Christian's children who survive me and Christian and obtain their majority, but if there are no such children 3.2.2.3 to pay the balance of the fund to my daughter, INGRID ELISE GILLETT if she survives me and Christian but if she dies before me or all before Christian leaving children who survive me and Christian those children shall on attaining their majorities take equally the share which their mother would otherwise have taken." 22 There are provisions in the Will expressing the testator's wish that his executor should have regard to Christian's best interests, to assist him to be self-reliant and live as normal a life as possible, to take into account his wishes, and to consider advice received by the executor from persons having the care, control and treatment of Christian or the management of his property. 23 It appears, as a matter of construction of clause 3.2, that Permanent as trustee has a duty to consider from time to time whether to apply the income of the fund for Christian's maintenance, education, support, advancement or benefit. Similarly, it has a duty to consider from time to time whether to apply the whole or any part of the capital of the fund for his benefit. Christian is not one of a number of discretionary objects. During his lifetime, he is the only object of the discretionary trusts. There is a gift over upon Christian's death, for the benefit of Ingrid or her children, but only of that part of the fund that remains after the trustee has discharged its duty during Christian's lifetime with respect to distributions. 24 It appears to me that in these circumstances, it is appropriate to say that Christian receives a direct benefit under his father's will, the benefit being an entitlement to be considered, having regard to his needs for maintenance, education, support, advancement and other benefits, for distributions out of the income and capital of the fund during his lifetime, and to receive such distributions as the trustee in the exercise of its discretion thinks appropriate. The forfeiture rule applies where the perpetrator of the crime receives a direct benefit out of the estate of the deceased. There being a direct benefit here, it is therefore capable of applying. The causation issue 25 The formulations of the forfeiture rule to which I have referred imply that the rule has no application unless there is a causal relationship between the beneficiary's wrongdoing and the deceased's death. If, say, the evidence in the present case showed that the deceased was satisfactorily recovering from his mattock wounds and then died from causes unconnected with them, the rule would not apply, because on that hypothesis Christian's benefit under the will would have not accrued in consequence of his unlawful conduct. 26 The evidence before me as to the cause of the deceased's death consists of a hospital medical record, a short interim post-mortem report and an autopsy report. There is no other medical report, and no affidavit or oral evidence has been induced on this matter. The evidence reveals some uncertainty as to the cause of death. 27 There were three wounds to the back of the upper part of the left chest, penetrating respectively for 30 mm, 5 to 10 mm, and 30 mm. The first two wounds were only to skin, tissue and muscle, but the third wound was associated with an underlying fracture of the third left rib, which in turn was associated with localised laceration of the left parietal pleural and with subpleural haemorrhage around the fracture site. There was also fracture of the sixth left rib, which the reports do not associate with any of the three wounds. 28 The deceased was admitted to hospital on 5 April 1998, the day of the attack, and he died early on the morning of 15 April. The autopsy report states that he appeared to have a left pneumothorax which was treated with the insertion of a chest drain, presumably shortly after admission. The report says that the deceased appeared to make good progress in recovery from the mattock injuries while in hospital, but developed breathing difficulties on 14 April. The report says that his anti-coagulant therapy had been suspended while he was in hospital, but that "on the day that he collapsed prior to his death" (presumably 14 April), he received an injection of a low molecular weight heparin. 29 According to both the interim post-mortem report and the autopsy report, the direct cause of death was "left haemothorax [a bleeding into the pleural cavity] and gastrointestinal haemorrhage", which were said to be "following" the chest injury. The chest injury was described as a morbid condition giving rise to the direct cause of death. Other significant conditions contributing to the death but not relating to the condition causing it, were identified as anti-coagulant therapy and generalised atherosclerosis. There is a neuropathology report which tends to confirm the death was associated with blood loss. 30 The autopsy report identifies a blood clot attached to the pleural surface of the left lung, which had probably been there for 7 to 10 days. Elsewhere in the report this is said to be the site of a superficial laceration to the left lung, apparently caused by the insertion of a chest drain between the sixth and seventh left ribs. In the interim post-mortem report, reference is made to this laceration in similar terms: "Superficial damage to surface of outer aspect of lower part of upper lobe left lung associated with insertion of chest drain." 31 But for the evidence of insertion of the chest drain, it may have been appropriate to infer that the haemothorax was caused directly by the third mattock wound. However, the autopsy report says that the direct cause of the haemothorax was injury caused at the time of insertion of the chest drain. There is also an autopsy finding that the laceration to the left lung and the associated blood clot were at about the level of insertion of the chest drain. On this evidence, it was the insertion and subsequent removal of the chest drain that lacerated the left lung and produced the haemothorax. 32 Whatever be the position as to the haemothorax, it is highly unlikely, on the evidence, that any of the mattock wounds caused the gastrointestinal haemorrhage, located at a site remote from the wounds. The autopsy report says that the cause of the gastrointestinal haemorrhage was not detected. There must be a possibility, not referred to in the reports, that the gastrointestinal bleeding was associated with the hospital's suspension of the deceased's anti-coagulant medication. 33 Whereas the haemothorax produced blood loss of 400 ml, the gastrointestinal haemorrhage produced 200 ml of altered blood in the stomach, and also the lumen of the small and large intestine was filled with altered blood. Both the autopsy report and the interim post-mortem report describe the gastrointestinal haemorrhage as "massive". The interim post-mortem report bears a handwritten endorsement: "As well, he had a massive gastrointestinal haemorrhage with altered blood filling stomach and small and large intestines. No specific bleeding point for this haemorrhage could be found." 34 Although this evidence suggests that the gastrointestinal bleeding was a significant component of the cause of death, it is not possible for me, on the evidence, to conclude that it was the cause of death to the exclusion of the haemothorax. Indeed, the evidence points to the conclusion that death was caused by a combination of these two factors. 35 In view of these various uncertainties, it is difficult for the Court to make any finding as to whether the mattock attack caused the deceased's death. The uncertainties in the evidence are compounded by the fact that the issue has not been contested, and the absence of full medical records or direct affidavit or oral evidence going to the issue. If it were necessary for me to reach a conclusion about the cause of death, I would say that it is more likely than not that the deceased died from causes other than the infliction of the mattock wounds. It seems to me, however, undesirable to base my decision on that ground. There is a more satisfactory way of reaching the conclusion that the forfeiture rule should not prevent Christian from taking a benefit under his father's will in this case. That is by the application of the Forfeiture Act, to which I shall shortly turn. The mental illness issue 36 The forfeiture rule applies to cases of murder (Re Estate of Crippen [1911] P 108; Re Tucker (1920) 21 SR(NSW) 175), and manslaughter (Re Estate of Hall [1914] P 1; Rasmanis v Jurewitsch (1969) 70 SR(NSW) 407), including cases where a murder charge is reduced to manslaughter by reason of diminished responsibility (Public Trustee v Fraser (1987) 9 NSWLR 433; and see Troja v Troja). The rule does not apply where a person who takes the life of another is not guilty of an offence by reason of mental illness: Re Plaister; Perpetual Trustee Co Ltd v Crawshaw (1934) 34 SR(NSW) 547. While it is open to the Court to infer that a perpetrator must have been mentally ill (for example, where an otherwise affectionate husband and father murders his wife and son: Re Pitts [1931] 1 Ch 546), in practice the conclusion that a person was suffering from mental illness sufficient to satisfy the M'Naghten rules is likely to be a difficult conclusion to draw on the basis of inferences (Clift v Clift (1964) 82 WN(NSW) 298, 304). 37 The question is whether there is evidence in this case sufficient to warrant a finding that Christian could not have been guilty of an unlawful killing because, at the time of the mattock attack, he was suffering mental illness. As I have said, James J expressly found that at the time of the mattock attack, Christian was suffering from mental illness satisfying the M'Naghten rules, and therefore he returned a special not-guilty verdict under s 38 of the Mental Health (Criminal Procedure) Act 1990. Can I use and rely on his Honour's finding for the purposes of this civil case? 38 Section 91 of the Evidence Act 1995 (NSW) provides that evidence of a decision or finding of fact in a proceeding is not admissible to prove the existence of a fact that was in issue in the proceeding. However, s 178 permits a certificate to be used to prove a conviction or acquittal of a criminal offence, or an order by a court. Subsection 178(2) has the effect that the certificate is evidence of the fact of the conviction, acquittal or order, and subsection (3) provides that the certificate is also evidence of "the particular offence or matter in respect to which the conviction, acquittal, sentence or order was had, passed or made". Therefore an appropriate certificate relating to the "special verdict" in respect of Christian might establish not only the fact that the order was made, but also the fact that Christian was affected by mental illness for the purposes of the Mental Health (Criminal Procedure) Act at the time of the events in question. However, there is no such certificate in the evidence before me. 39 The conclusion suggested by s 91, namely that the judgment of James J is not admissible to prove Christian's mental illness at the time of the mattock attack, is reinforced by the general law of evidence. In Helton v Allen, after the residuary beneficiary had been held to be not guilty of murder in his criminal trial, a question arose as to whether evidence of the acquittal was admissible against the next of kin, who sought to establish the application of the forfeiture rule in a civil proceeding. Dixon, Evatt and McTiernan JJ (at 710) pointed out that a conviction is not an essential condition for the application of the rule, for the cases include instances where the perpetrator brought about his own death or was a fugitive from justice. Where the perpetrator has been convicted of a criminal offence, evidence of the conviction is admissible in the civil proceeding to establish an estoppel against him (citing Helsham v Blackwood (1851) 11 CB 111 [138 ER 412]). However, an acquittal does not establish an estoppel against the party seeking to apply the forfeiture rule in a civil proceeding, and therefore evidence of the acquittal is not admissible (presumably because it is not relevant). 40 It seems to me that evidence of James J's finding that Christian was not guilty of malicious wounding by virtue of mental illness would not create any estoppel that would prevent Ingrid or Ailsa from asserting, in the present civil proceeding, that Christian was guilty of an unlawful killing, and that he was not exonerated by mental illness. That being so, by application of the reasoning in Helton v Allen, any evidence of the decision of James J as to Christian's condition of mental illness in the criminal proceeding appears to be inadmissible in the present case. 41 Once James J's judgment is removed, there is insufficient admissible evidence for me to conclude that the forfeiture rule (if otherwise applicable) is excluded because of Christian's mental illness. There is evidence establishing that Christian's affairs have been managed by the Protective Commissioner since 1993, but there is no admissible evidence before me going to his mental condition at the time of the mattock attack, although it appears that ample evidence was placed before James J. The Forfeiture Act 42 The Forfeiture Act 1995 (NSW) was enacted "to provide relief for persons guilty of unlawful killing, and other persons, from forfeiture of benefits". Where the Act applies, it permits the Court to make a "forfeiture modification order" under s 5. The Act applies, relevantly, to an unlawful killing occurring within the State: s 4(1). "Unlawful killing" is defined s 3 to mean, relevantly, any homicide committed in the State that is an offence. 43 Assuming there is an unlawful killing in this case, so that I have jurisdiction to make a forfeiture modification order, I regard the evidence as sufficient for such an order to be made. Subsection 5(3) requires the Court to have regard to four criteria. As to criterion (a), the conduct of the offender, I am able to take into account the fact that, at the time of the attack, Christian's affairs were under management by the Protective Commissioner in consequence of an order of the Mental Health Review Tribunal made in 1993. As to criterion (b), the conduct of the deceased person, there is no evidence shedding light on whether I should make an order under s 5. 44 As to criterion (c), there is considerable evidence concerning Christian's pecuniary and other needs. Dr Ferrer, the Psychiatry Registrar who is part of the team caring for Christian, says it is likely Christian will eventually (though not in the near future) have conditional release, if he remains well during the transition program he is undertaking, and if he adheres to the conditions of his present leave privileges. There is a needs assessment report, which discusses the possibility that Christian may in future obtain a driver's licence and therefore need a car. He is said to have chronic schizophrenia and a poor work history, and has never lived independently, and his vocational options are thought to be limited. He would like to live in his own home unit in the northern beaches, and plans to lease with rental assistance, and with supplementation from his inheritance. He currently receives $15 per day for expenses such as cigarettes and coffee, which he finds to be inadequate. 45 In my opinion the evidence shows that Christian has immediate pecuniary needs, which will escalate in future if he is discharged. His sister Ingrid, who would take on his death if she outlives him and he has no children, has already received the other half of the deceased's estate, and has agreed to short minutes of order under which she would receive only an additional $10,000. It appears to me that when one takes into account the needs of Christian and these matters concerning Ingrid, the case for making an order under s 5 is reasonably strong. It is unnecessary to have recourse to criterion (d) (other matters that appear to the Court to be material). 46 Section 6 of the Forfeiture Act permits the Court to make a forfeiture modification order in such terms and subject to such conditions as the Court thinks fit. It appears to me that in the present case the order should take the form proposed in the cross-claim, that is to say an order that would put Christian in the same position as if the forfeiture rule had no application. 47 Section 7 prescribes, relevantly, that an application for a forfeiture modification order must be made within 12 months from the death of the deceased person. However, subsection 7(2) permits the Court to give leave for a late application where, inter alia, the Court considers it just in all the circumstances to give leave. In the present case I consider it just to give leave, so that I can make a forfeiture modification order that would eliminate the doubt as to Christian's entitlement, arising out of the uncertainty as to whether the forfeiture rule has any application to his case. 48 If Christian's mattock attack on his father caused his father's death 10 days later, there is sufficient evidence for me to conclude, in this civil proceeding and in the absence of further evidence about his mental condition, that Christian has committed an unlawful killing, and therefore I have jurisdiction to make a forfeiture modification order. If the mattock attack did not cause the deceased's death, then the forfeiture rule does not apply and Christian is entitled to be considered for distributions under the will. It therefore appears to me appropriate to (a) make a declaratory order that either the forfeiture rule does not apply or that the Court has jurisdiction to make an order under the Act; and (b) grant leave to Christian to apply under the Forfeiture Act and make a forfeiture modification as sought in his cross-claim. Provision under the Family Provision Act 49 The cross-claim makes an application for extension of time for the filing of a summons for relief under the Family Provision Act, and seeks an order under that Act in favour of Christian. The other persons who would be affected by such an order, namely Ingrid and Ailsa, have each consented to the making of an order in terms of the short minutes of order to which I have referred. 50 The order would have the effect of replacing clauses 3.2 and 3.3 of the Will with a provision disposing of the second half of the estate by giving Ingrid a pecuniary legacy of $10,000 and giving the residue to Christian. If that order is made, it will be possible for Permanent to distribute the second half of the estate and conclude its administration. The residue payable to Christian will be paid to the Protective Commissioner for Christian's benefit. I am satisfied, in all the circumstances, that it is appropriate for such an order to be made. Conclusions 51 I shall make orders to the following effect: 1. The Court declares that either: (a) the involvement of Christian Matthew Gillett in the facts and circumstances leading to the death of Keith Gillett ("the Deceased") was not such as to invoke the operation of the rule of public policy known as the forfeiture rule; or (b) the Court has jurisdiction to make a forfeiture modification order under section 5 of the Forfeiture Act 1995 (NSW). 2. The Court grants leave to the Cross-Claimant, under section 7(2) of the Forfeiture Act 1995 (NSW), to make the application made on his behalf in his Cross-Claim filed on 2 June 2003, as a late application. 3. The Court orders that the time within which the Cross-Claimant may file a summons seeking relief under the Family Provision Act 1982 (NSW) be extended under section 16 of that Act to 2 June 2003, the date of filing of the Cross-Claim. 4. The Court orders, under section 5 of the Forfeiture Act 1995 (NSW), that the effect of the forfeiture rule is modified by excluding the application of the rule in relation to the one half share of the estate of the Deceased referred to in clause 3.2 of his last Will dated 19 November 1995 ("the Will"), so that the Plaintiff is entitled to administer the fund constituted under clause 3.2 without regard to the operation of the forfeiture rule. 5. The Court notes the agreement of the parties that the Plaintiff is justified in paying to the Third Defendant for the benefit of the First Defendant pursuant to clause 3.2.1.3 of the Will, the sum of $10,000, such sum to represent the estimated amount by which the Third Defendant is out of pocket in respect of moneys paid by her to and for the benefit of the First Defendant up to the date of these Orders. 6. In lieu of the provision made for the First Defendant under clauses 3.2 to 3.3 (inclusive) of the Will and pursuant to the Family Provision Act, section 10, the Court orders that there be inserted in lieu of clauses 3.2 to 3.3 (inclusive) the following:- "3.2 As to the other part (a) I give to my daughter Ingrid Elise Gillett a legacy of $10,000; (b) I give the residue to my son Christian Matthew Gillett absolutely." 7. The Court orders that the costs of the Plaintiff and the First Defendant on the indemnity basis be paid out of the estate of the Deceased. 8. The Court orders that the costs of the Second and Third Defendants on the party/party basis be paid out of the estate of the Deceased. 52 In the interests of minimising further costs, I shall invite the legal representatives of the Plaintiff and the First Defendant to make any written submissions they may wish to make (including any submission that a further short hearing should take place) on or before 15 April 2004. My intention is to make orders to the above effect, subject to any modifications that might be proposed and accepted, in chambers on 16 April. But I shall arrange for a further short hearing if either of those parties request it, or I see a need for it.

Last Modified: 04/16/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.