Plaintiff v First Defendant

2 James Charles Edwards ('the deceased') died from wounds inflicted by his widow, Jemma Elizabeth Edwards ('Mrs Edwards'), who is the fourth defendant to these proceedings. The deceased is survived by Mrs Edwards, his daughter Megan Edwards ('Megan') from a previous marriage, the first defendant, and Mrs Edwards' mother, Jeannie Elizabeth Day ('Mrs Day'), the second defendant.

3 The awful circumstances leading up to when Mrs Edwards killed the deceased are not in dispute. Prior to meeting the deceased, from all accounts Mrs Edwards led a happy and normal life. She met the deceased in 1997 and they were married the following year. This was the deceased's second marriage, the first having dissolved in 1986 after a relationship marked by domestic violence.

4 The deceased began acting violently toward Mrs Edwards in 1999 and that violence was frequent and ongoing. Over the course of their relationship the deceased began to isolate Mrs Edwards and her mental health deteriorated. Mrs Edwards has a history of anxiety and depression, and has been diagnosed as bipolar.

5 In the week leading up to the death of the deceased, Mrs Edwards visited her mother, Mrs Day, in Queensland, who described her as being in a bad mental state. Upon her return to Melbourne Mrs Edwards sought help for anxiety. Three days later neighbours reported that a serious domestic dispute appeared to be taking place. Early the next morning a neighbour heard Mrs Edwards screaming. Shortly thereafter Mrs Edwards called an ambulance.

6 In an interview conducted a fortnight later by the police, Mrs Edwards said that, in the months before the incident, the deceased had become increasingly violent towards her and had repeatedly threatened to kill her. When she woke up on the day of the incident, the deceased was still drunk from the night before and threatened to set her on fire to disfigure her. Mrs Edwards described that:

I panicked. As he was storming out, I grabbed the spear gun because he'd used the spear gun on me in the past, he shot me in the stomach with it and it just bounced off, so I didn't think it would do any harm. I thought it would just stop him, because I was so petrified. And - and so I shot it, and it did bounce off, and he got really wild and angry so he grabbed a kitchen knife and came towards me with it, and I struggled with him, and he lost his balance and fell. And I grabbed the knife and I stabbed him 'cos I was so - I was so frightened. And the rest of it was just a blur.[1]

7 Mrs Edwards pleaded guilty to one count of defensive homicide, as defined in s 9AD of the Crimes Act 1958. It was submitted on Mrs Edwards' behalf that she believed her actions were necessary to defend herself from death or serious injury, but it was conceded that there were no reasonable grounds for that belief. She was sentenced to seven years' imprisonment, with a non-parole period of four years and nine months.

8 The statutory offence of defensive homicide was introduced in 2005. Section 9AC of the Crimes Act 1958 provides for a statutory form of self-defence. It provides that a person is not guilty of murder if, although she has carried out the conduct that would otherwise constitute that offence, at the time, she believed that conduct to be necessary to defend herself or another from the threat of death or really serious injury. A genuine belief of the kind referred to in s 9AC is a complete defence to the charge of murder, even if that belief is not reasonably held.

9 Section 9AD contains the offence of defensive homicide. It provides that:

A person who, by his or her conduct, kills another person in circumstances that, but for section 9AC, would constitute murder, is guilty of an indictable offence (defensive homicide) ... if he or she did not have reasonable grounds for the belief referred to in that section.

The maximum penalty that may be imposed is the same as that for manslaughter, viz 20 years' imprisonment. A person is guilty of defensive homicide if she kills someone in circumstances that would otherwise constitute murder, but at the time she held a genuine but unreasonable belief that that conduct was necessary to defend herself or another from really serious injury or death.

10 Section 92(2) of the Evidence Act 2008 provides that evidence of a conviction is admissible in a civil proceeding to prove the existence of a fact that was in issue in the criminal proceeding. By s 178(2) of that Act, evidence of a conviction may be given by a certificate. A copy of the certificate of conviction of Mrs Edwards is exhibit SEG-1 to the affidavit of Sarah Elizabeth Gittins affirmed on 29 April 2014. I therefore proceed on the basis that Mrs Edwards is guilty of defensive homicide.

11 Given that Mrs Edwards is guilty of defensive homicide, I should also proceed on the basis that, but for her genuine belief of the kind referred to in s 9AC, her killing of the deceased would have constituted murder. As Weinberg J noted in his sentencing remarks, by Mrs Edwards' plea of guilty she acknowledged that she killed the deceased with the intention of killing him, or at least of causing him really serious injury.[2]

12 The deceased left a will dated 18 November 2004 ('the will'). State Trustees obtained a grant of probate of that will on 6 May 2011. The will relevantly provides:

1. I GIVE AND DEVISE the whole of my estate to Jemma. If she does not survive me the following provisions shall apply.
2. I GIVE DEVISE AND BEQUEATH my residuary estate to my Trustee upon trust to:

(a) pay the sum of SEVENTY THOUSAND DOLLARS ($70,000.00) to my mother-in-law JEANNIE ELIZABETH DAY ('Jeannie') and, if she has predeceased me at the date of my death or dies within thirty (30) days of the date of my death to my brother-in-law CHRISTOPHER DAY.

(b) Pay the balance to my mother MARGARET CLARE EDWARDS and, if she has predeceased me at the date of my death or dies within thirty (30) days of the date of my death to:

(i) Pay the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) to Jeannie.

(ii) Pay the balance to the Peter MacCallum Cancer Institute to be used for cancer prevention, cancer education or patient care and treatment at or any purpose connected with the Institute, for which the receipt of the Treasurer or other officer shall be sufficient discharge to my Executor for the bequest.

13 The mother of the deceased referred to in clause 4 of the will, Margaret Clare Edwards, predeceased the deceased. Therefore, if the gift-over provisions in clause 4 were to operate, the distribution of the estate would be:

1. $70,000 to Mrs Day pursuant to clause 4(a);
2. $100,000 to Mrs Day pursuant to clause 4(b)(i); and

1. the balance of the estate to the Peter MacCallum Cancer Institute ('Peter Mac'), the third defendant, pursuant to clause 4(b)(ii).

14 According to the express terms of clause 3 of the will, the estate should pass to Mrs Edwards, because she has survived the deceased. Clause 3 notwithstanding, in order to answer the questions raised in the originating motion, the Court must determine:

1. whether the 'forfeiture rule' applies to prevent Mrs Edwards, as the killer of the deceased, from taking a benefit under the deceased's will; and if so
2. how the forfeiture rule is to apply.

15 In short compass, the submissions of the parties on these two questions are set out below.

Does the forfeiture rule apply to prevent Mrs Edwards from taking a benefit under the will?

16 In broad terms, the forfeiture rule prevents a killer from taking a benefit brought about as direct result of that killing. The nature of killing that will give rise to the operation of the rule is disputed in this case. It is also disputed whether the Court has a discretion not to apply the rule in certain circumstances, or the rule is absolute and inflexible.

17 Mr Panna, of her Majesty's counsel for Mrs Edwards, submitted that the forfeiture rule, as a rule grounded in public policy and equitable principles, ought to be responsive to community views. He submitted that it should not apply to Mrs Edwards in this case, because she killed the deceased in circumstances of very low moral culpability.

18 Ms Ryan, of her Majesty's counsel for Peter Mac, which would receive the balance of the estate under the gift over, submitted that the forfeiture rule was inflexible and absolute. She submitted that the rule should apply to deprive Mrs Edwards of her gift under clause 3 of the will.

19 Mr Smith, of counsel for Megan, submitted that the forfeiture rule was an inflexible rule of law, as opposed to equity, that prevented Mrs Edwards from taking a benefit under the will.

20 State Trustees, as the executor of the estate of the deceased, took an impartial and non-partisan role in the proceedings. Mr Boaden of counsel nonetheless canvassed the arguments on the various questions before the Court and took a final position on what the Court should decide, in an effort to assist the Court. Mr Boaden ultimately endorsed the submissions of Mr Panna. He submitted that the forfeiture rule, as a rule based on a principle of public policy, should be flexible. He submitted that it should not apply to deprive Mrs Edwards from taking the estate of the deceased.

21 Mrs Day, who would receive $170,000 by way of the gift over, did not appear at the trial either in person or through a representative.

If the forfeiture applies, how is the estate to be distributed?

22 Three broad approaches to the application of the forfeiture rule were debated at trial. First, it was argued whether Mrs Edwards, the primary beneficiary of the deceased's estate under the will, holds her legal interest on constructive trust for certain beneficiaries to be determined by the Court. Secondly, it was argued whether the rule in Jones v Westcomb[3] may give effect to the gift over in clause 4. Thirdly, it was argued whether the will should take effect according to its terms, subject only to Mrs Edwards forfeiting her entitlement.

23 Mr Panna, having argued that the forfeiture rule did not apply, made no submissions on how the rule should operate in the event that it did apply.

24 Ms Ryan argued that Mrs Edwards should be declared to hold her interest on constructive trust for those entitled under the gift over in clause 4, because that outcome best conforms with the deceased's intention. In the alternative, Ms Ryan submitted that the gift over is saved by the rule in Jones v Westcomb.

25 Mr Smith submitted that the will should take effect according to its terms. Because the gift to Mrs Edwards failed and the gift over cannot take effect on a literal reading of clause 3, the gift falls on an intestacy. Megan would then inherit the estate according to the laws of intestacy, since Mrs Edwards is prevented from benefitting on an intestacy no less than under the will.[4]

26 Mr Boaden submitted that, if the Court found that the forfeiture rule applied, the will should take effect according to its terms, with exception that Mrs Edwards could not benefit. Mr Boaden submitted that the appropriate mechanism was that Mrs Edwards hold her interest on constructive trust for: anyone entitled on a gift over; failing which, any residuary beneficiaries; failing which, anyone entitled on an intestacy.

Submissions on whether the forfeiture rule prevents Mrs Edwards from taking a benefit under the will

27 Rival contentions as to the nature of the forfeiture rule were put forward by the parties. Much argument was directed to whether the Court has a discretionary power to apply the rule, or is bound to apply the rule inflexibly. That question depends on the nature of the rule consistent with the principle underlying that rule, both of which are the subject of extensive debate. It will be observed that, whether it is determined that there is a discretion or not, it remains to be determined with precision which acts trigger its application.

28 On behalf of Mrs Edwards, it was contended that in Victoria there is no conclusive authority that the rule absolutely deprives any person who is criminally responsible for the death of another from taking a benefit under the deceased's will, irrespective of the circumstances of the deceased's death. Mr Panna of counsel submitted that the rule was based on public policy and equitable principles; it was therefore open to the Court to consider whether the rule should apply in cases of low moral culpability.

29 Mr Panna indicated that the rule had not previously been applied to prevent a person who had been convicted under s 9AD of the Crimes Act 1958 from taking an interest under her victim's will. Strictly speaking, there is no authority for the proposition that the rule applies in cases of defensive homicide.

30 Though some judges have considered that the rule should apply inflexibly in all cases of manslaughter, there have been cases, in this State and elsewhere, in which judges have held that there is a discretion. The High Court has not answered this question definitively. While in Helton v Allen,[5] Dixon, Evatt and McTiernan JJ stated that the rule applied in cases of manslaughter, Kirby P pointed out in his dissenting judgment in Troja v Troja[6] ('Troja') that the decision in Helton v Allen did not turn on the scope of the rule. Rather, the question before the High Court in that case was whether an acquittal in a criminal trial was conclusive of the defendant's innocence in a civil action. The Court's opinion on the application of the rule in manslaughter cases was strictly obiter dicta and therefore not technically binding.

31 Mr Panna submitted that the crimes of manslaughter and defensive homicide are distinct. Defensive homicide allows a killer who was defending herself against the threat of violence at the time of the killing to receive a lesser sentence on the basis of her lower moral culpability. Mr Panna contended that, although Troja brought an end to a flexible application of the rule in New South Wales, at least in cases of murder and manslaughter, that decision is not binding in this State. He submitted that the approach taken in Public Trustee v Evans[7] ('Evans') and Public Trustee v Fraser[8] ('Fraser') ought to be followed in this State, as it was in Re Keitley[9] and Miliankos v Miliankos ('Miliankos').[10]

32 Besides Kirby P's dissent in Troja, all four cases Mr Panna referred to were of manslaughter. In each of those cases, no bright analytical line was drawn between those cases in which the rule would apply and those in which it would not. Rather, in each case, the trial judge found a discretion not to apply the rule, which prima facie would have operated to deprive the killer of taking a benefit, on the basis that it would not be unconscionable for the killer to retain the benefit and the rule of public policy would not apply. As I understand it, Mr Panna's argument is not that the forfeiture rule does not apply to defensive homicide as a category of offence, but that the Court has a discretion not to apply the rule and that discretion ought to be exercised in the circumstances of this case.

33 Mr Panna submitted that the underlying principle for the rule was to be found in Cleaver v Mutual Reserve Fund Life Association ('Cleaver'), where Fry LJ said:

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.[11]

34 Because it is a judge-made rule grounded in public policy, it was submitted that the rule could not be static, for public policy changes over time. Mr Panna referred to the dicta of Kirby P, in dissent in Troja, to the effect that the ultimate test is what the 'sense of outrage' to which the law is responding requires.[12] In some cases of homicide, there will be little or no sense of outrage; in those instances the rule should be applied. Indeed, it can now be said that society may revolt at the idea of so inflexible a rule as that urged by Megan and Peter Mac.

35 Mr Panna referred to the High Court decision of Stevens v Keogh[13] for the proposition that public policy must reflect changes in society's values and morality. Though it once may have been against public policy to allow someone to take a benefit from a victim of homicide in all cases, society's values have now shifted to the point that this is no longer the case. Mr Panna submitted that it was an 'extraordinary proposition' that a judge-made rule of public policy should have somehow ossified into an inflexible rule of law that could only be amended by legislation, as occurred in the United Kingdom[14] and in NSW[15] following the Court of Appeal's judgment in Troja. It was further submitted that the legislative intervention to soften the rule was evidence of the fact that it is no longer against public policy to allow a killer to benefit in all circumstances.

36 Mr Panna submitted that Victorian authority was divided on this issue. In two Victorian cases there was found to be a discretion, and in one the rule was found to be inflexible.

37 Re Keitley was a case of domestic violence in which a widow pleaded guilty to manslaughter.[16] Coldrey J followed the approach taken in NSW in Evans and Fraser. His Honour preferred this approach, which he referred to as the NSW approach, where all of the circumstances of the killing may be considered, to the rigidity of the English approach. His Honour declined to apply the rule to Mrs Keitley, who had suffered ongoing domestic violence at the hands of her husband and killed him while gripped by fear and suffering emotional turmoil.

38 In Miliankos, Nathan J followed the decision in Re Keitley, accepting the statement of principle of Kearney J in Fraser, that the fundamental question is whether the taking of a benefit would be 'unconscionable as representing an unjust enrichment of that person so as to attract the public policy rule'.[17] Miliankos was handed down only five days before the judgment of Troja.

39 In Re Soukup, Gillard J followed the majority decision in Troja, holding that the rule applies inflexibly in all cases of manslaughter.[18] His Honour did not consider it appropriate for an individual judge to ascertain and set the limits of public policy; if the application of the rule should be qualified, that would be a matter for the legislature. Mr Panna submitted that the Court was not bound by the decision in Re Soukup and urged the Court not to follow it, since a rule based on public policy and equity should not be allowed to work injustice.

40 Against the submissions put on behalf of Mrs Edwards it was submitted on behalf of Peter Mac that the Court should follow Troja and that the rule was absolute and inflexible. It was said to apply where the Court is satisfied on the civil standard that a person has unlawfully killed the deceased.[19] Motive and intention are irrelevant to the application of the rule.[20] In Victoria, the only exception to the application of the rule is if the killer is insane at the time of the offence.

41 Ms Ryan submitted that the Court should not treat a person guilty of defensive homicide any differently from a person guilty of murder or manslaughter. The rule applies equally to both. That is because the rule arises as a result of the unlawful killing, not as a result of any specific element of murder or manslaughter. Ms Ryan submitted that the preponderance of authorities do not distinguish between kinds of unlawful killing.

42 Ms Ryan submitted that, in any event, there was no occasion in the circumstances of this case for the Court to make an exception to the forfeiture rule. The killing was deliberate and unlawful. Mrs Edwards, in pleading guilty to defensive homicide, thereby conceded all the elements of that crime. In particular, Mrs Edwards admits to killing the deceased with an intention to kill, or at least to cause really serious injury.

43 Ms Ryan submitted that Mrs Edwards' diminished moral culpability was not a relevant consideration in determining whether the rule applies. That was established in Troja,[21] which overturned Fraser on this point, and confirmed in this State in Re Soukup.[22] Ms Ryan contended that the characterisation of the rule as a punishment is inaccurate; it is merely the denial of a benefit resulting from a criminal act to a killer. Though the application of the rule may cause hardship in certain circumstances, any amelioration of the rule is a matter for the legislature.

44 On behalf of Megan, it was also submitted that the law is as stated in Troja: the rule is inflexible and absolute,[23] and it does not depend on the moral culpability of the killer.[24]

45 In his final submissions, Mr Boaden endorsed the position taken by Mr Panna on behalf of Mrs Edwards: as a rule of public policy, the forfeiture rule should be responsive to current community views.

46 Mr Boaden submitted that, though the passing of legislation in the UK and NSW to ameliorate the rule may be thought to indicate that the rule is by its nature inflexible, that is not necessarily the case. Before Troja settled the question on one side in NSW, numerous judges had concluded that the rule was not inflexible and did not consider themselves to be bound by Helton v Allen. Therefore, Mr Boaden submitted that it remains open in this State to find that there is a discretion.

47 Mr Boaden also submitted that an inflexible application of the rule could bring about inappropriate results in certain cases, for instance: deaths arising from negligent or inadvertent acts; deaths involving domestic violence; mercy killings; assisted suicides and suicide pacts; and culpable driving or dangerous driving causing death. It was submitted that, by contrast, there would be no risk of bringing about inappropriate results if the rule were flexible, because the rule would operate unless the Court considered that its application would be inappropriate.

48 The forfeiture rule has not yet been applied to prevent a person convicted of defensive homicide from obtaining a benefit under a will.

49 In determining the application of the forfeiture rule to defensive homicide, it is necessary to draw a distinction, as Mahoney JA did in Troja, between the underlying principle of public policy and its application, the latter of which can give rise to various formulations of the rule in different legal contexts.[25] At times formulations of the rule and the principle may be indistinguishable. The principle has been applied in various contexts, including insurance contracts, trusts, wills and intestacies.[26]

50 In the foundational case of Cleaver v Mutual Reserve Fund Life Association, Mrs Maybeck murdered her husband by intentionally poisoning him.[27] While the case concerned murder, as Harvey J said in Re Tucker, '[w]hat exactly the principle is, is not easy to find out, because the judges [in Cleaver] have expressed themselves differently'.[28] Lord Esher MR, appearing at first to confine his discussion to murder, said:

That the person who commits murder, or any person claiming under him or her, should be allowed to benefit by his or her criminal act, would no doubt be contrary to public policy.[29]

If, in consequence of the death of the insured having been caused by the crime of a person in whose favour the policy is expressed to be made, ... such person is not entitled to insist on its being paid to him ...[30]

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.[31]

the principle of public policy would prevent the wife from recovering the amount of the policy money from them, and so reaping benefit from her crime; because no trust can be enforced which contravenes the law.[32]

51 Each of their Lordships appears to consider the rule to be an instantiation of the broader principle of public policy that one should not profit from the commission of a crime. Fry LJ, for his part, considered that the rule laid down in Amicable Society for a Perpetual Life Assurance Office v Bolland[33] emanated from the same principle. In that case, the assignees of a forger were prevented from claiming the benefit of a policy by reason of the forgery. The statement of principle in Re Crippen,[34] in which a husband murdered his wife, is also broad. Sir Samuel Evans P said: 'It is clear that the law is, that no person can obtain, or enforce, any rights resulting to him from his own crime[.]'[35]

52 In Re Hall; Hall v Knight, it was established that the rule applied equally to cases of manslaughter.[36] Hamilton LJ, referring to Cleaver, said:

True that was a case of murder, but I do not think that, by using terms wide enough to cover manslaughter, the members of the Court supposed themselves to be speaking obiter, or were in fact doing so. The principle can only be expressed in that wide form. It is that a man shall not slay his benefactor and thereby take his bounty; and I cannot understand why a distinction should be drawn between the rule of public policy where the criminality consists in murder and the rule where the criminality consists in manslaughter.[37]

On the fact that the case before him concerned manslaughter and not murder, Cozens-Hardy MR said:

I entirely fail to appreciate that distinction. It was a case of felony and I see no reason to draw a distinction between murder and manslaughter in a case like this.[38]

The Court explicitly rejected the argument for the convicted wife[39] that the rule should be modified to account for the various degrees of manslaughter.

53 In Re Tucker, a case of a husband who murdered his wife, Harvey J grappled with the various statements on the nature of the principle of public policy in Cleaver and Hall, and concluded:

Whatever the reason for the rule the Courts seem to have laid down that if a death occur and a person is criminally responsible for that death, and that death is a material fact in the vesting in possession of an interest in favour of such person, that interest is forfeited.[40]

In the above quotation Harvey J explicitly contrasts the rule with the 'reason for the rule', viz, the principle of public policy. On his formulation, the rule applies to anyone who is 'criminally responsible' for the death of another. It may be that the broad statements of principle in Cleaver and Hall compelled his Honour to frame the rule in terms almost as wide as the principle of public policy underlying the rule.

54 The High Court considered the scope of the rule in Helton v Allen.[41] As Mr Panna noted, the decision in that case did not turn on whether the rule applied in cases of manslaughter. Dixon, Evatt and McTiernan JJ adopted Fry LJ's expression of the rationale for the rule in Cleaver and cited Hall as authority for the proposition that the rule extended to cases of manslaughter.[42] The Court located the rule in the principle that 'by committing a crime no man could obtain a lawful benefit to himself'.[43]

55 Though various expressions of the rule may be found in the foregoing cases, in my opinion, the core principle is sufficiently clear: that a person ought not to be allowed to bring about a benefit by the commission of a crime. The mere identification of the basic rationale for the rule does not, however, determine its precise limits.

56 The rule has not been applied in this State to cases of involuntary manslaughter, such as manslaughter by criminal negligence. American law has shown a willingness to distinguish between voluntary and involuntary killings, so that the rule will not necessarily deprive someone guilty of killing another through negligent driving from claiming under an insurance policy in his favour.[44]

57 As Young J noted in Evans, there is a series of cases in the UK where courts have allowed recovery under insurance policies for motor accidents.[45] Tinline v White Cross Insurance Association Ltd[46] and James v British General Insurance Co Ltd[47] both involved manslaughter by a driver. In both cases it was held that insurance policies against third party liability were enforceable by the killers.

58 As noted by Gillard J in Re Soukup,[48] these two cases were doubted in Haseldine v Hosken,[49] but were neither approved nor disapproved in that case. Gillard J opined that the expression of principle in those cases might have been influenced by the fact that they concerned the construction of insurance legislation.

59 Grey v Barr concerned an insurance policy under which the insured was indemnified against liability for damages for personal injury.[50] Mr Barr was found guilty of manslaughter after killing Mr Gray, with whom Mr Barr's wife had been having an affair. Mr Barr had intentionally fired a shot to frighten Mr Gray. In the ensuing scuffle, Mr Barr accidentally fired another shot and killed Mr Gray. Mr Gray's widow and father claimed damages against Mr Barr, who in turn claimed an indemnity under a policy that indemnified him against liability for damages in respect of injury to a person caused by accident. The English Court of Appeal found Mr Barr guilty of manslaughter.

60 Lord Denning MR drew a distinction between motor manslaughter cases, where an insured is entitled to recover, and the species of manslaughter before him. His Lordship said:[51]

in the category which is here in question, it is different [from the motor manslaughter cases]. If his conduct is wilful and culpable, he is not entitled to recover: see Hardy v Motor Insurers' Bureau.[52] I agree with the [trial] judge when he said:

The logical test, in my judgment, is whether the person seeking the indemnity was guilty of deliberate, intentional and unlawful violence, or threats of violence. If he was, and death resulted therefrom, then, however unintended the final death of the victim may have been, the court should not entertain the claim for indemnity.[53]

61 On the facts before the Court of Appeal, it was sufficient for the application of the rule that Mr Barr had deliberately threatened Mr Gray with a loaded gun and thereby brought about his death.

62 In In Re K deceased, Vinelott J applied the test in Gray v Barr to deprive a widow who had killed her husband from taking a benefit accruing to her on his death.[54] Though she had not intended to kill her husband, but only to frighten him with a loaded gun, she had nonetheless brought about his death by a deliberate threat of violence.[55] Vinelott J exercised his discretion under the Forfeiture Act 1982 (UK) to modify the rule and relieved the widow from forfeiture.

63 The above line of authority led Gillard J to conclude in Re Soukup that in England the rule may not preclude benefits from accruing as a result of an act causing death that was not 'deliberate, conscious and intentional'.[56] Although it was not necessary to decide the point on the facts before him, his Honour took the view that the rule likewise should not apply in this State to a person who was not guilty of 'deliberate intentional and unlawful violence or threats of violence resulting in death'.[57]

64 In Dunbar v Plant, delivered a year after Re Soukup was decided, the English Court of Appeal held that the forfeiture rule applied to deprive the surviving member of a suicide pact from taking a benefit accruing on the deceased's death.[58] In Theobald on Wills, this case is cited as authority for the proposition that the forfeiture rule applies to all cases of manslaughter,[59] although it is doubted in Williams, Mortimer and Sunnucks whether the case is strictly authority for that proposition.[60] The judicial consensus is now that there are no manslaughter exceptions to the forfeiture rule in the UK.[61]

65 Phillips LJ, with whom Hirst LJ agreed, believed that, but for the invention of the Forfeiture Act 1982 (UK), judges would have modified the rule.[62] In that regard, cases such as Grey v Barr were 'straws in the wind'.[63] Now that the Forfeiture Act 1982 (UK) was in force, however, the appropriate course was to apply the rule and exercise the powers under the Act.[64] His Lordship distinguished the reckless driving cases on the basis that the overriding public policy was that the victim should benefit under policies of insurance.[65] Mummery LJ, in dissent, expressed the rule differently. His Lordship, referring to the expression of the rule in Gray v Barr, considered that it was not necessary for the application of the rule that there be acts or threats of violence; it was sufficient that the crime was deliberate and intentional.[66]

66 The first case on which Mr Panna relies is Public Trustee v Evans, which was decided in 1985.[67] There Young J declined to apply the rule to a woman who shot and killed her husband in circumstances of diminished responsibility. Her husband had assaulted their child, beaten her up and threatened to kill her and her children with a loaded gun. The woman got hold of the gun and, when her husband began to walk towards her, shot and killed him. At her trial for manslaughter, the trial judge concluded that a nominal punishment was sufficient.

67 In considering the applicability of the forfeiture rule, Young J cited the motor manslaughter cases as situations in which the forfeiture rule had not been applied because there was no public policy against allowing recovery in those circumstances.[68] His Honour then saw fit to decide whether public policy compelled him to apply the rule on the facts before him:

The rule that we are applying here is essentially a judge-made rule, it is a rule of public policy and it is open to a judge whilst recognizing the importance of all that has been said beforehand, to make the pronouncement if he thinks it appropriate as to the limitation of the rule for his particular age.[69]

68 Young J compared the approach taken in the UK to that taken in the US, where the rule has been applied less strictly. His Honour did not consider himself bound to follow the English cases. He said:

I have to decide whether in 1985 in New South Wales there is a rule of public policy which makes it anti-social to permit a wife who has been threatened by her husband that he will kill her and her children, and who has shot him to prevent mayhem, to be debarred from recovery.

...

My view of the ethos prevailing in this State at this time is that it is commonly recognized that unfortunate situations may occur in family groups whereby a death regrettably occurs because of a situation of domestic violence.[70]

69 Young J's approach was followed by Kearney J in Public Trustee v Fraser two years later.[71] Analogising with the equitable principles of unconscionable retention and the law of restitution, his Honour took the view that the conduct of the beneficiary ought to be considered under the rubric of unconscionability.[72] His Honour thought that the fundamental task was:

to determine whether the taking of a benefit by a person through his crime would be unconscionable as representing an unjust enrichment of that person so as to attract the public policy rule. In my view this entails not only ascertaining the nature of the crime but also looking to the circumstances in order to evaluate the moral culpability to be attributed to the offender. To stop, as Vinelott J did [in In Re K deceased] at the first step seems to me to apply the rule in a blinkered manner.[73]

70 Although his Honour concluded that he had a discretion not to apply the rule, Kearney J considered that cases in which a discretion is exercise must be necessarily very rare. His Honour applied the rule to prevent a paranoid schizophrenic who had killed his mother from benefitting from her estate. He said:

In the present instance I do not consider that the son has established either such features of the crime or such lack of moral culpability as to displace the operation of the rule. His crime was one of deliberate violence, although accompanied by reduced appreciation of circumstances and susceptibility to the heat of the moment by reason of his paranoid schizophrenia.[74]

It is significant, in my view, that the deliberate nature of the killing was an important factor in deciding to apply the rule.

71 The discretionary approach was first taken in this State in Re Keitley.[75] There, a wife killed her husband in circumstances of serious domestic violence and pleaded guilty to manslaughter. Coldrey J followed what he referred to as the NSW approach, apparently rejecting the contrary approach taken by Powell J in Kemperle v Public Trustee[76] and later in Bain v Morabito.[77] His Honour considered that the NSW approach:

allows for the consideration of the circumstances surrounding the unlawful killing including the behaviour of the offender and the victim in assessing both the seriousness of the conduct and the level of moral culpability of the perpetrator of the fatal act.[78]

Nathan J followed Re Keitley in Miliankos and adopted the formulation of the rule laid down in by Kearney J in Fraser.[79]

72 The ambit of the forfeiture rule was considered by the NSW Court of Appeal in Troja. In a dissenting judgment, Kirby P considered that the modern forfeiture rule developed without much consideration of its fundamental nature or precise scope.[80] The President argued that, since its inception, there has been a gradual movement away from characterising the rule as a supervening rule of public policy to searching for a more conceptually sound formulation, which was to be found in equitable rules.[81]

73 Aside from considerations of conceptual soundness, Kirby P favoured an equitable formulation of the rule because it could take account of the manifold mitigating circumstances in which homicide might occur, especially in a domestic relationship. The President reasoned that, if the rule was one of public policy, there must be cases where it will not be an affront to public policy to allow a killer to inherit.[82] The established exception for cases of mental impairment was proof of that general principle.[83]

74 Kirby P considered that the High Court judgment in Helton v Allen did not fix the scope of the forfeiture rule or its exceptions. The nature and scope of the rule were not argued in that case, which concerned the proof of matters the subject of an earlier criminal trial.[84]

75 Besides the argument that it might not be against public policy in some cases to allow a killer to take a benefit, Kirby P approached the question from a structural perspective. Kirby P observed that English courts tended to favour the position that the civil forfeiture rule was a rule of public policy that prevailed over clear statute law; whereas courts in the US preferred an analysis whereby the rule did not disturb the position at law, but equity intervened to prevent the unconscionable acquisition of property by imposing a constructive trust.[85] The President preferred the American approach as being more conceptually sound, since the English approach saw not only the law of wills, but also clear statutory laws on intestacy, overridden by a supervening public policy rule.[86]

76 Kirby P concluded that the approach taken in Evans, Fraser and Re Keitley ought to be followed, regarding it as 'more conceptually sound, and more liable to produce justice in its operation'.[87] The President laid down the ultimate test as:

what the 'sense of outrage' requires, to which the law is responding. This necessitates the determination of the circumstances in which it will be unconscionable for the perpetrator of an unlawful homicide to derive benefits as a consequence of the felonious act. In many cases (perhaps most), it would indeed be unconscionable for any benefit to be derived by the perpetrator. But in some cases, in the infinite variety of the circumstances which can lead to homicide, there will be no, or little, outrage. In such cases there will be no offence to conscience.[88]

Kirby P, influenced by the doctrinal concerns of Professor James Barr Ames in the US,[89] put forward an equitable foundation for the rule:

The forfeiture rule is, in reality, an application to what would otherwise be the operation of law of the equitable principles which deny persons from gaining benefits from their own morally culpable conduct. To prevent that happening, a court of equity is authorised to impose a constructive trust to prevent the perpetrator's gain. The trust will be imposed by the court to achieve a just result and to prevent the unjust enrichment of the wrongdoer.[90]

77 Mahoney and Meagher JJA delivered separate concurring judgments in Troja holding that the rule was an inflexible rule based on public policy.

78 Mahoney JA considered that the basic principle was as described by Dixon, Evatt and McTiernan JJ in Helton v Allen,[91] that the law will not enforce 'rights directly resulting to a person asserting them from the crime of that person'.[92] His Honour said that the general principle was evident in various systems of law dating from Justinian. The difficulty lay not in the principle but in its precise application.[93]

79 As regards the application of the rule, Mahoney JA saw no difference between murder and manslaughter:

The relationship between the killing and the claim to the benefit from it is direct. It is the killing which has brought about the operation of the will. There may be borderline cases. But, as seen from this and other legal systems, to prevent a criminal killer from taking directly the estate of her victim does not appear to me to involve departure from the dictates of justice.[94]

Though his Honour refers to the possibility of 'borderline cases', his Honour's formulation appears on its face to include involuntary manslaughter cases within the ambit of the rule, so long as the killing has brought about the operation of the will. It should be borne in mind, however, that on the facts before him, a wife killed her husband 'deliberately and with forethought'.[95]

80 That the application of the rule would deprive the wife of her rights under her husband's will was not a proper basis for not applying the rule.[96] His Honour could see nothing unconscionable in her not being able to claim the property of her husband upon his death. On the other hand, any property right that she might establish pursuant to a Baumgartner v Baumgartner[97] trust would not be affected. Nor did his Honour consider that the fact that she was emotionally affected at the time of the killing was a sufficient reason for not applying the rule.[98] The mental pressures on the killer, however severe, did not excuse the planned and deliberate killing of another person.[99]

81 Mahoney JA explicitly rejected the argument that the rule was an equitable one that ought to be based on notions of unconscionability. On his Honour's understanding, the rule is but a modern instantiation of the primordial principle that no man can obtain a lawful benefit by committing a crime.[100] This principle was made necessary by the abolition of the ancient forfeiture laws.[101] It is a species of neither equity nor the common law, but applications of the principle may be found in the doctrines of each.[102] His Honour said:

It was suggested in argument, I think, that the matter may be tested by whether to refuse to allow the wife to take her husband's property would be unconscionable or the like. As I have said, the present principle is not one which depends upon the Chancery jurisdiction. It has quite a different basis. 'Unconscionable' may be what offends, or strongly offends, those who are in Chancery. With respect, I do not think that the law measures whether she should take her husband's property in this way.[103]

82 In a concurring judgment, Meagher JA stated that 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 violent means, he shall not be entitled to take that benefit'.[104] His Honour agreed with Mahoney JA on the nature of the underlying principle:

The basis of the doctrine is public policy, an abhorrence of the notion that one may profit from killing another, an odium occisionis. It is absolute and inflexible.

Referring to the discretionary approach taken in Evans, Fraser and Re Keitley, Meagher JA said:

The law as laid down in Cleaver's case is that all felonious killings are contrary to public policy and hence, one would assume, unconscionable. Indeed, there is something a trifle comic in the spectacle of Equity judges sorting felonious killings into conscionable and unconscionable piles.[105]

83 Meagher JA notably refers to felonious killings. That term is also used by Kirby P and Mahoney JA in Troja, and in many of the authorities. It has been suggested that categorising the killer's action as a serious crime, by referring to it as a felony, has had a 'talismanic effect'.[106] But the technical distinction between felonies, especially murder and manslaughter, and misdemeanours, which has now been abolished, is not relevant to the operation of the modern forfeiture rule.[107]

84 The nature of the forfeiture rule came before Gillard J in 1997 in Re Soukup.[108] A husband killed his intestate wife and pleaded guilty to manslaughter. The question for his Honour was whether the rule applied to prevent the husband from inheriting his wife's estate. His Honour cited Hall[109] as authority for the proposition that the rule does not depend upon the degree of moral culpability of the killer.[110] The rule is based upon public policy: 'an abhorrence that a person could as a result of his crime, benefit financially'.[111]

85 As discussed above,[112] having examined the motor manslaughter cases, Gillard J concluded that in England there may be an exception to the forfeiture rule in cases of involuntary or negligent manslaughter.[113] Leaving aside those cases, which did not resemble the facts before him, his Honour concluded that the law in this State does not recognise any exception to the rule in manslaughter cases and agreed with the majority in Troja.[114]

86 Disagreeing with Coldrey J's approach in Re Keitley, Gillard J emphasised that he did not think that public policy was incapable of changing with the views of society, but that it was inappropriate for an individual judge to declare what public policy should dictate. In his view, to recognise an exception to the rule as Coldrey J did was to defeat its very rationale, that one should not be allowed to reap a benefit from killing another.[115]

87 In my view, the modern forfeiture rule is an instantiation of the wider principle of public policy that a person shall not be allowed to profit from her crime. It is an expression of the legal maxim ex turpi causa non oritur actio.[116] I adopt the statement of principle in Beresford v Royal Insurance Co Ltd, where Lord Wright MR said:

The principle has been applied not only in the authorities quoted above but also in many decisions dealing with varied states of fact and applications of the same or similar principle. These are all illustrations of the maxim ex turpi causa non oritur actio.[117]

88 In the more specific context of homicide, the rule is based on the abhorrence that one may benefit from killing another person. That principle is accepted as the basis of the rule in the foundational case of Cleaver, in Amicable Society for a Perpetual Life Assurance Office v Bolland, by the High Court in Helton v Allen, by the majority in Troja, and by Gillard J in Re Soukup. As discussed previously, the principle underpins rules in various areas of law.[118]

89 Indeed, the forfeiture rule is not so much a rule but a collection of rules based upon a general principle of public policy. I agree with Mahoney JA that the rule is a creature of neither equity nor the common law, but that applications of the principle may be found in the doctrines of each. The difficulty lies not in the rationale of the rule but rather in its application.[119]

90 In my view, the statements of the general principle contained in the judgments in Evans, Fraser, Re Keitley and Miliankos, and of Kirby P in Troja, should not be followed for two reasons. First, I consider that the way the notion of public policy is used in those judgments is based on a misapprehension of the underlying principle. Secondly, I consider that the importation of equitable concepts and the language of unconscionability in this sphere is unwarranted.

91 While the rule is based on a principle of public policy, it is a particular principle: the abhorrence of the notion that one may profit from killing another. It is not a rule based on public policy simpliciter. The reference to 'public policy' in various statements of the principle does not, in my view, justify the consideration of wide-ranging policies in deciding whether the rule applies to the case at hand. Nor does it invite a judge to weigh competing public policy concerns against one another as she sees fit. It does not follow from the proposition that the rule is based on a principle of public policy that broad concepts of public policy may be applied directly to the instant case.

92 It is therefore entirely logical that a rule, based on a principle of public policy, should not be able to be modified by an individual judge to accord with what that judge thinks is fair in all of the circumstances of a particular case. To allow a judge to modify the rule in this way would be to substitute a judge's own opinion for a rule shaped by long-standing authority and based on a principle capable of precise formulation.

93 It is neither necessary nor appropriate to answer conclusively in this case what the precise limits of the rule are. But there can be no discretion, in my view, not to apply the rule on the basis of idiosyncratic notions of what public policy (understood here in the widest sense) would require in the instant case. The authorities on the nature of the principle are clear that the application of the rule is structured around a relatively specific principle of public policy, the abhorrence of killing, not public policy in the broad sense. The rule responds to the nature of the homicide that brought about the benefit.

94 It follows that neither hardship on the defendant resulting from application of the rule, nor low moral culpability, is a basis upon which to relieve the killer from the application of the rule.[120] As Gillard J stated in Re Soukup, to grant an exception on such grounds is to defeat the purpose of the rule.[121] Moreover, I agree with Mahoney J's statement that tragic circumstances, 'while they may explain, do not excuse the planned and deliberate killing of a human being.'[122] In my opinion, hardship and low moral culpability are not proper considerations in deciding whether the forfeiture rule applies.

95 Consistently with my opinion that the rule is based on a general principle of law, I consider that the rule is not based on equitable notions of unconscionability. The principle and its application are distinct. The manner of the rule's application - whether it prevents the passage of legal title, or converts the owner of the legal title into a constructive trustee - depends on the context in which the rule is to be applied. In a joint tenancy, for instance, it is settled law that, if one joint tenant kills the other in circumstances that attract the forfeiture rule, legal title will pass by survivorship to the killer, but the killer will hold a one-half interest in the property on trust for the estate of the deceased.[123]

96 In the cases involving the doctrine of survivorship, the constructive trust is the device by which effect is given to the forfeiture rule. In those cases, it is unconscionable for the killer to insist on her legal title to the property. The unconscionability is supplied, however, by the conduct that attracted the application of the forfeiture rule. In Rasmanis v Jurewitsch, Jacobs JA, with whom Wallace P and Mason JA agreed, having concluded that the rule of public policy ought not to alter the laws of real property descent, said:

Upon the basis that legal title is unaffected, but that equity will interfere on the grounds of public policy the question then is how equity will so interfere in order to prevent the felon from reaping a benefit from the slaying.[124]

Jacobs JA perceived the question before him to be how effect might be given to the forfeiture rule. Meagher JA observed with characteristic pithiness in Troja:

The appellant has pointed to various other decisions by Equity judges - [Evans, Fraser and Re Keitley] - to the effect that the court has a discretionary power whether to apply the forfeiture rule or not, and if so, to what extent, and to the further effect that it is not to be applied where to apply it would be unconscionable. This is not the law .... The law as laid down in Cleaver's case is that all felonious killings are contrary to public policy and hence, one would assume, unconscionable. Indeed, there is something a trifle comic in the spectacle of Equity judges sorting felonious killings into conscionable and unconscionable piles. It follows that I would regard the decisions of Young J, Kearney J and Coldrey J as incorrect.[125]

97 It is apparent from the above two quotations that, where equity intervenes, it does so on the basis of the property's having been acquired in contravention of the forfeiture rule. In my view, the equitable device of the constructive trust does not invite enquiry into diverse matters that might render retention of the benefit unconscionable, including hardship on the killer or low moral culpability. Given that the rule is not equitable in nature, there can be no discretion whether to apply the rule flowing from its equitable nature.

98 Having concluded that there is no discretion not to apply the rule, I must consider the acts causing death to which the rule attaches. It is beyond doubt that the rule applies in all cases of murder.

99 The persuasive authority of decisions of intermediate appellate courts on judges in other state jurisdictions was considered in Farah Constructions Pty Ltd v Say-Dee Pty Ltd ('Farah').[126] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said:

Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.[127] Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.[128]

Farah states that I should follow the decision in Troja unless I am convinced that it is plainly wrong.[129] I am not technically obliged to follow Troja under the doctrine of precedent, but I ought to follow Troja as an exercise in stare decisis.[130] In considering the persuasive power of Troja it is therefore relevant that the decision was not unanimous.

100 Troja stands as authority for the proposition that the forfeiture rule is 'absolute and inflexible' in its application to 'felonious' killings, which I take here to refer to murder and manslaughter.[131] In my opinion, the judgments of Mahoney and Meagher JJA are consistent with a strong line of authority, descending from Cleaver, on the scope of the rule and its rationale. The force of the statement of principle in Troja is augmented by Gillard J's adoption of that approach in Re Soukup and by the weighty dicta of Dixon, Evatt and McTiernan JJ in Helton v Allen.[132]

101 Although the statement of the rule in Troja would appear to cover all cases of manslaughter, that case concerned a deliberate and forethought act.[133] I do not consider that Mahoney and Meagher JJA thought themselves to be speaking obiter in casting the rule as widely as they did. But I am inclined to agree with Gillard J that the rule might not apply to certain acts causing death that are not deliberate and intentional - consistently with the English statements of principle to that effect - with the qualification that I doubt whether an act or threat of violence is a necessary ingredient for the rule to apply.[134] I am even more doubtful that the rule would apply in a case of culpable driving causing death or to other crimes of a similar nature.[135] If there is to be an exception in such cases, it may be because an inadvertent act will not offend the principle of public policy enunciated above.

102 In my view, Troja and Re Soukup are clear authorities for the proposition that the forfeiture rule will apply in all cases of voluntary manslaughter, viz, where the elements of murder are present, but for some reason the culpability of the offender is reduced.[136] The rule laid down in the Australian authorities therefore appears to be that, at the least, a person who kills another person by a deliberate and unlawful act forfeits any benefit arising as a direct result of that act.

The application of the forfeiture rule to defensive homicide

103 Mrs Edwards killed the deceased in circumstances that, but for her genuine (yet unreasonable) belief that killing the deceased was necessary to defend herself, would have constituted murder. She killed the deceased deliberately and with an intention to kill him, or at least to cause him really serious injury. I am mindful that the crime of defensive homicide carries the same maximum penalty as that of manslaughter. I am persuaded that I ought to follow the expressions of the rule laid down in Helton v Allen, by the majority in Troja, and in Re Soukup. Those expressions of the rule clearly encompass the circumstances in issue.

104 I have concluded that I have no discretion to grant relief from the forfeiture rule on the basis of Mrs Edwards' tragic circumstances and very low moral culpability. It follows that Mrs Edwards forfeits her interest in the deceased's estate.

105 The question that now arises for consideration is: given that Mrs Edwards forfeits her entitlement under the deceased's will, how is the will to be construed? Can effect be given to the gift-over provision in clause 4 designed to operate in the event that Mrs Edwards should fail to survive the deceased by 30 days?

106 In Re Stone, McPherson J considered that the disposition to the killer was 'to be considered as passing as if he had died immediately before the testator'.[137] However, the method of treating the killer as having notionally deceased the testator was rejected by Young J in Public Trustee v Hayles ('Hayles')[138] and Windeyer J in Ekert v Mereider ('Ekert'),[139] who said that there was no basis for an assumption of a death that had not occurred.

107 The use of a fiction aside, there are two ways in which courts have applied the rule. Either the rule prevents the passage of legal title to the killer, or legal title passes (whether by will or on an intestacy) but equity treats the recipient as a constructive trustee of the title because of the unconscionable mode of its acquisition.

108 If the rule prevents legal title from passing under the will, the gift to the killer fails and falls upon an intestacy, unless there is a gift-over provision to which operation can be given. The rule, if it applies in the circumstances of the case, prevents the killer from taking on an intestacy just as under a will.[140] In the event that a constructive trust is imposed, it falls for consideration who the beneficiary or beneficiaries of that trust ought to be.

109 The next question that arises is whether the gift-over provision in clause 4 can be saved by the rule in Jones v Westcomb.[141] The rule in Jones v Westcomb is an exception to the general rule that a gift over upon a contingency will not take effect unless that exact contingency occurs.[142] It provides that in certain circumstances, although the precise contingency has not occurred, the gift over will nonetheless take effect. The contingency upon which the gift-over provisions in clause 4 are to operate in this case is that Mrs Edwards predecease the deceased. Plainly, that contingency has not occurred.

110 Ms Ryan contended that there was no reason in principle why a constructive trust could not be imposed. It does not matter whether the forfeiture rule is itself legal or equitable, since a constructive trust is merely a means by which equity exercises its remedial character. In any event, the rule has been characterised as equitable in numerous authorities.

111 Ms Ryan submitted that the Court should impose a constructive trust to give effect to the expressed intention of the testator. There should be no requirement that the deceased specifically intended that the gift over should operate. In support of the imposition of a constructive trust, Ms Ryan submitted that:

(a) it was the clear intention of the deceased that his estate should pass to the secondary beneficiaries in the event of Mrs Edwards' death, and the same consequence should arise on the failure of the gift to Mrs Edwards by another means;

(b) clause 6 evinces the deceased's intention not to benefit Megan, which would occur on an intestacy; and

(c) a testator cannot decently provide for the contingency of being murdered by the primary beneficiary.

112 Ms Ryan relied on the case of Hayles, where Young J imposed a constructive trust on a gift by will. His Honour rejected Windeyer J's dictum that a constructive trust should not apply to a gift by will.[143] Ms Ryan submitted that the judgment in Hayles should be preferred to Ekert, because to treat the deceased as having died intestate would be to indulge in a fiction. A constructive trust better gives effect to the expressed intention of the testator.

113 Alternatively, Ms Ryan submitted that the gift-over provisions should be saved by the rule in Jones v Westcomb. The Court should enquire 'what was the real contingency guarded against'.[144] Clause 6 of the will suggests that the contingency to be guarded against is intestacy. If a specific intention that the gift over take effect need be found, that intention is evident upon reading the will as a whole and in particular clause 6. Ms Ryan relied on the decision in Re Keid, where Wanstall CJ applied the rule in Jones v Westcomb to save a gift over in circumstances where a son, the primary beneficiary, murdered his mother. The gift over in favour of the deceased's daughters was enforced.

114 Mr Smith contended that the court cannot impose a constructive trust because the forfeiture rule is not an equitable rule that can give rise to an equitable remedy. Mr Smith urged the Court to follow Ekert, where Windeyer J refused to impose a constructive trust. Windeyer J distinguished between circumstances in which a joint tenant takes by survivorship but cannot benefit owing to a felonious act and where a benefit is given under a will. His Honour said '[i]t does not seem to me there is any entitlement to impose a constructive trust in circumstances where a benefit given under a will is forfeited'. Windeyer J referred to a passage from the judgment at first instance in Troja v Troja,[145] where Waddell CJ in Eq considered that the law did not limit the way in which effect might be given to the forfeiture rule, citing Rasmanis v Jurewitsch as authority for that proposition.[146]

115 Mr Smith submitted that, although Windeyer J did not elaborate on why a constructive trust ought not to be imposed, its rejection was the inevitable consequence of the proper application of the forfeiture rule. An equitable remedy is not available unless the forfeiture rule is itself a creature of equity, which, Mr Smith submitted, it is not.

116 Mr Smith submitted that it followed from the majority judgments of Mahoney and Meagher JJA in Troja that the application of the rule could not give rise to an equitable remedy such as a constructive trust. The rule is inflexible and rigid, and therefore antithetical to equity. Mr Smith acknowledged that the constructive trust imposed by Waddell CJ in Eq at first instance was not disturbed on appeal. He noted, however, that the appellant, who had killed the deceased, appealed only on the basis that Waddell CJ in Eq erred in refusing to provide her relief from the forfeiture rule. Neither Mahoney JA nor Meagher JA, in the majority, referred to the imposition of the constructive trust. Mr Smith submitted that, had the point been raised and considered, their Honours would have been compelled to decide as Windeyer J had done in Ekert.

117 Mr Smith submitted that the rule in Jones v Westcomb should not be applied in this case for two reasons. First, it is dangerous to assume what the deceased must have intended, had he known that he would be killed by his wife. Secondly, it is unlikely that the deceased would have intended that the gift over in favour of his mother-in-law operate in the event that he was killed by his wife. Mr Smith suggested that it was more likely that he would have made amends with his daughter Megan, had he known of his impending death.

118 Mr Boaden submitted that the gift-over provision should not be saved by the rule in Jones v Westcomb. To give effect to Jones v Westcomb would be to trigger the gift over in circumstances in which it was never specifically intended that the will should operate. He referred to the case of Fell v Fell, wherein Isaacs J set out ten incontestable principles in the construction of wills. His Honour said:

(3) 'If the will shows that the testator must necessarily have intended an interest to be given which there are no words in the will expressly to devise, the Court is to supply the defect by implication, and thus to mould the language of the testator, so as to carry into effect, as far as possible, the intention which it is of opinion that the testator has on the whole will, sufficiently declared' (Towns v Wentworth; Hawkins on Wills, 2nd ed, at p 6).

(4) An inference cannot be made 'that did not necessarily result from all the will taken together' (Sir R P Arden MR in Upton v Ferrers). A necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed (James LJ in Crook v Hill).

(5) 'We cannot give effect to any intention which is not expressed or plainly implied in the language of' the 'will' (Lord Watson in Scalé v Rawlins). 'You have no right to fancy or to imply, unless there be something within the four corners of the will which is not only consistent with the implication you make, but which could hardly stand, if at all, in the will, without that implication being made. That is what is called necessary implication, and legitimate implication, in contradistinction to gratuitous, groundless, fanciful implication' (Lord Brougham LC in Langston v Langston).[147]

119 Although a constructive trust of the sort fashioned by the Young J in Hayles is an attractive solution for various reasons, including that it does not require a judge to refuse to enforce either a gift by will or the intestacy provision, its chief defect is that its operation is uncertain: it is unclear who is to be the beneficiary of the constructive trust. Mr Boaden submitted that it falls afoul of the dicta of Deane J in Muschinski v Dodds:

The fact that the constructive trust remains predominantly remedial does not, however, mean that it represents a medium for the indulgence of idiosyncratic notions of fairness and justice. As an equitable remedy, it is available only when warranted by established equitable principles or by the legitimate processes of legal reasoning, by analogy, induction and deduction, from the starting point of a proper understanding of the conceptual foundation of such principles.[148]

120 In lieu of the kind of constructive trust proposed by Young J in Hayles, Mr Boaden proposed a constructive trust that gives effect to the terms of the will, save that it deprives the killer of her entitlement. Mr Boaden suggested that legal title should vest in the killer, who holds her benefit on constructive trust for:

(a) anyone entitled on a gift over, but only if the exact contingency that occurs - ie, the killing of the testator - is contemplated under the will; failing which

(b) any residuary beneficiaries; failing which

(c) the next of kin.

121 Mr Boaden referred in support of this proposal to the remarks of Deane J in Muschinski v Dodds, where his Honour emphasised that a constructive trust is not confined to cases where there was a prior fiduciary relationship or to any other category of case:

Once its predominantly remedial character is accepted, there is no reason to deny the availability of the constructive trust in any case where some principle of the law of equity calls for the imposition upon the legal owner of property ... of the obligation to hold or apply the property for the benefit of another[.][149]

122 It was submitted that this was the most favourable outcome where a gift over did apply (which would be vanishingly unlikely), or the will contained a residuary disposition. In the event that the will made no alternative disposition, it was appropriate that the beneficiaries of the constructive trust should be those entitled on intestate succession, since the intestacy rules have historically proved successful. Part IV of the Administration and Probate Act 1958 provides a fallback in those cases where the intestacy provisions do not yield the appropriate result.

123 Mr Boaden disagreed with Mr Smith's submission that a constructive trust cannot be imposed because the forfeiture rule is not a rule of equity. He submitted that equity has an auxiliary jurisdiction that works hand in hand with the legal jurisdiction. There is no bar to the imposition of a constructive trust in these circumstances.

124 The constructive trust approach proposed by Mr Boaden is strikingly similar to that outlined in the American Restatement (Third) of Restitution and Unjust Enrichment ('Third Restatement').[150] In s 45 of that work, the basis of the so-called 'slayer rule' is the prevention of unjust enrichment by homicide. Many US states have enacted statutes providing that a killer may not take under a victim's will, and in such circumstances, legal title will not vest in the killer. But where there are legal rules - whether of general law or of statute - that give property to a killer, the traditional approach in the US is that those rules should not be overridden. In those circumstances, the Third Restatement suggests that those legal rules may be accommodated by an equitable device: the killer is decreed to hold her property on constructive trust for someone else.[151] Section 45 cmt (c) describes the constructive trust as but one remedial response to the slayer rule, and not as the natural response. That is because, if the killer is prevented from acquiring legal title by statute or otherwise, the constructive trust can have no application.[152]

125 The operation of the rule is outlined in s 45(3):

(3) Property the slayer is barred from taking is distributed as directed by statute or (in the absence of statutory direction) to the person with the paramount equitable claim. That person is ordinarily

(a) the person at whose expense the slayer has been unjustly enriched, if such a person can be identified; failing which

(b) the person intended by the victim to take the assets in question as an alternative beneficiary to the slayer, if such a person can be identified; failing which

(c) the person who succeeds to legal ownership of the property on elimination of the slayer's interest;

but a court may seek to avoid a result that achieves the wrongful purposes of a slayer or defeats the legitimate purposes of the victim. If no paramount equitable claim can be identified, the court may divide the property between persons whose equitable claims are of equal rank.

126 Where it is difficult upon the facts to identify the person who should succeed to the assets, s 45 cmt (d) states that 'the court [must] determine the most equitable disposition of the assets in question'.[153] If the testator has identified an alternative beneficiary, the victim's presumed intention provides a basis for preferring the alternative beneficiary's equitable claim.

127 This differs in an essential respect from Mr Boaden's approach, wherein the Court should not give effect to a gift over where the precise contingency upon which the gift over was to operate has not occurred. Section 45 cmt (d) states that, although 'the victim assuredly did not contemplate the circumstances that would prevent the slayer from taking the intended gift, the victim's designation of an alternative beneficiary - who was intended to take in preference to the victim's estate - ordinarily gives that person a superior claim'.[154] It states that effect can be given to this outcome by the rule of thumb that property from which the killer is barred should be distributed as though the killer had predeceased the victim.

128 The Third Restatement does not, however, recommend the adoption of this rule of thumb as an invariable rule. The overriding direction of s 45(3) is that property passes to 'the person with the paramount equitable claim'. That person will not always be the alternative beneficiary.

129 Mr Smith's submission that a constructive trust is inappropriate because the forfeiture rule is not a creature of equity must be rejected. As discussed above, the forfeiture rule is of its nature neither equitable nor legal, but effect may be given to the rule by the equitable device of a constructive trust.[155] If Mr Smith's submission were correct, the many decisions in which constructive trusts were imposed in the context of joint tenancies must be incorrect.[156] In my view, that position is not sustainable. A constructive trust may not be the appropriate device in the context of a gift by will, but not for the reason put forward by Mr Smith.

130 In my view, it is not appropriate to impose the kind of constructive trust imposed by Young J in Hayles. Unlike the constructive trust imposed in the context of the doctrine of survivorship, the Hayles constructive trust lacks a principled basis upon which to determine the person for whom the killer holds the property on trust.

131 In Hayles, the testator made a will leaving his entire estate on trust for his friend Mr Knowlson, with a gift over in favour Mr Knowlson's mother, if Mr Knowlson should predecease him. Mr Knowlson murdered the testator and so forfeited his entitlement. The question for the Court was whether Mr Knowlson's mother should take the estate or the estate should fall on an intestacy.

132 Young J considered that there was very little support for the approach that the killer forfeited her entitlement at law and referred to the 'theoretical and philosophical objections' to that approach best articulated by Professor James Barr Ames.[157] Referring to the joint tenancy cases of Re Thorp and Rasmanis v Jurewitsch, his Honour concluded that the Court of Appeal in NSW had firmly embraced the constructive trust theory, 'at least in the field of survivorship under a joint tenancy'.[158]

133 Young J disagreed with Windeyer J's dictum in Ekert that it was inappropriate to impose a constructive trust upon a gift by will, as opposed to upon property attained by survivorship. First, his Honour referred to the writings of Professor James Barr Ames, quoted by Kirby P in Troja:

It seems impossible to justify the reasoning of the courts in these cases. In the case of the devise, if the legal title did not pass to the devisee, it must be because the testator's will was revoked by the crime ... But when the legislature has indicated that no will shall be revoked except in certain specified modes, by what right can the court declare a will revoked by some other mode? In the case of inheritance, surely, the court cannot lawfully say that the title does not descend, when the statute, the supreme law, says that it shall descend.

Secondly, Young J said that the change in the system of inheritance in NSW,[159] whereby realty no longer passed direct to the beneficiary but via the executor, should not affect the application of the rule. Thirdly, on his Honour's reading, the constructive trust approach has been taken in mainstream cases.

134 Young J concluded that the Court should make 'the murderer hold the estate on trust for the person it thinks appropriate'.[160] Considering how that trust is to be fashioned, his Honour said:

Particularly in the case of a murder by a beneficiary of the testator, as the court is dealing with a constructive trust which it constitutes in order to avoid unconscionability, there is no reason at all why the court cannot give effect to an intention which is neither expressed in or implied by the words of the will but which appears ex ultra. It may be that as a matter of evidence one might conclude as Windeyer J did in Ekert's case that there is insufficient to allow one to find an intention, but where that problem is overcome on the facts, the court may do so. If it cannot find any sufficient evidence of intention then the court relies on the general guidelines which guidelines would appear to be that the court may in appropriate cases treat the disentitled beneficiary as if he or she had pre-deceased the testator or may consider that the trust should be in favour of the heir at law or person who would take on intestacy.[161]

135 In my view, there are significant defects in the approach favoured by Young J and urged by Ms Ryan on behalf of Peter Mac. As submitted by Mr Boaden, it falls afoul of Deane J's admonition against employing the constructive trust as 'a medium for the indulgence of idiosyncratic notions of fairness and justice'.[162] This is in contrast to the joint tenancy cases, where the operation of the trust can be set on firm ground: the killer succeeds to the legal title by the doctrine of survivorship, but is not permitted to enjoy it beneficially. The killer's enlargement accrues beneficially to the victim's estate in the case of two joint tenants, or to the third joint tenant in the case of three joint tenants.[163]

136 In comparison to the joint tenancy cases, it is not at all clear how a constructive trust ought to operate in the context of a gift by will. In my view, the test proposed by Young J - what the Court thinks appropriate - is not a sound basis upon which to determine who should succeed to property that the killer is barred from taking in the context of a gift by will.

137 On Young J's formulation, it is unclear which intention is relevant. Is it the probable intention of the testator on all the evidence available to the Court, including extrinsic evidence? Or is it the intention of the testator as manifested in the will instrument itself, illuminated by the armchair principle[164] where appropriate? Insofar as Young J considers that the Court can give effect to the former kind of intention via a constructive trust, I respectfully disagree. In my view, it is inappropriate to give effect to an intention that appears outside the will simply by employing the device of a constructive trust.

138 While it is true that the task for the Court is to determine the operation of the forfeiture rule, that determination does not occur in a vacuum. The Court must also determine the operation of the testator's will in light of the fact that the killer cannot take, just as in the joint tenancy cases the Court must determine how the doctrine of survivorship should operate in circumstances where the forfeiture rule applies. A constructive trust fashioned by the Court in the manner suggested by Young J would allow, in my view, the Court to violate the fundamental principle of will construction: that the object of the Court is to ascertain the intention of the testator as manifested in the will when it is read as a whole in the light of any extrinsic evidence admissible for the purpose of its construction.[165]

139 In my view, Young J's second step, in which the Court looks to guidelines such as that the Court may treat the killer as though she had predeceased the testator, also lacks rigour. The criterion by which the Court is to fashion the trust remains unclear. The joint tenancy cases represent an example of the Court applying the ordinary processes of legal reasoning moving from the conceptual foundations of the doctrine of survivorship and the forfeiture rule. Young J's constructive trust does not, in my opinion, move from the appropriate conceptual foundations: the construction of a will in light of the application of the forfeiture rule. While I acknowledge that clause 6 of the will evinces an intention not to benefit Megan, that cannot justify ignoring the express terms of the will, except where it is possible to infer an intention by necessary implication. It is all the more inappropriate to fashion a trust on the basis of the 'ex ultra' intentions considered in Hayles.[166]

State Trustees' approach and the American approach

140 The approaches advocated by Mr Boaden and in the Third Restatement are superior to the constructive trust approach in Hayles because they lay down criteria to determine who should benefit on the operation of the forfeiture rule. They share the doctrinal advantage that they do not disturb the ordinary operation of gifts by will at law.

141 Mr Boaden's approach dictates that the recipient of any gift over ought to be the beneficiary of the constructive trust, but only if the precise contingency upon which the gift over was to operate actually occurs. But if the testator has contemplated the exact circumstances upon which the gift over was to operate, viz, his being killed at the hands of his principal beneficiary, there is no requirement for a constructive trust at all. The gift over will simply operate according to its terms, with legal title vesting in the alternative beneficiary. In that case there would be no need to convert the killer into a constructive trustee, since the terms of the will would ensure that title would not vest in her.

142 Although s 45(3) establishes an order of ordinary priority, the lodestar of the approach in the Third Restatement is the 'paramount equitable claim'. It is suggested in s 45, Illustration 3 that, when the rule of thumb whereby the killer is treated as having predeceased the deceased is applied, the outcome may not be justifiable on the basis of the testator's presumed intent. In such cases, 's 45(3) authorizes the court to weigh the equities of competing claimants, with no presumption in favor of one side or the other'.

143 An approach that requires the Court to determine the 'paramount equitable claim', where the Court may 'weigh the equities of the competing claimants', suffers from the same defect as the Hayles constructive trust. Such an approach amounts to determining the beneficiary or beneficiaries on the basis of an unstructured judicial discretion, which has no place in the law of constructive trusts in Australia. As Deane J said in Muschinski v Dodds:

Under the law of this country ... proprietary rights fall to be governed by principles of law and not by some mix of judicial discretion ..., subjective views about which party 'ought to win' ... and 'the formless void of individual moral opinion'.[167]

144 In my opinion, although the approach advocated in the Third Restatement is preferable to the Hayles constructive trust, it does not offer a satisfactory method for determining who should be the beneficiary of the trust. The distribution recommended by the Third Restatement could lead to inconsistent results not grounded in sound legal principle. Accordingly, it is my view that it is inappropriate to impose a constructive trust based on the 'paramount equitable claim' in circumstances where the forfeiture rule applies to a gift by will.

Is the gift over saved by the rule in Jones v Westcomb?

145 The rule in Jones v Westcomb[168] is an exception to the general rule that a gift over upon a contingency will not take effect unless that exact contingency occurs.[169] It provides that in certain circumstances, although the precise contingency has not occurred, the gift over will nonetheless take effect. The scope of the rule is disputed. It is described in Theobald thus:

There is, however, a class of cases where, though the exact event upon which the gift over is to take effect does not happen, the gift over must a fortiori have been intended to take effect in the event that happens.[170]

In Jones v Westcomb, for instance, the testator devised a term for life to his wife and after her death to the child with whom she was then thought to be pregnant, with a gift over to the wife in the event that the child die before 21. Though his wife was not actually pregnant at the time of the devise, the gift over to her took effect.

146 The description of the rule in Theobald suggests the following analysis of the facts in Jones v Westcomb. Given that the testator willed, if his child died before 21, that the gift to the child should go to his wife; a fortiori he would have intended that the gift over to her take effect, had he known at the time of the devise that she was not pregnant. The contingency actually contemplated raised the ineluctable inference that the testator must a fortiori have intended the gift over to take effect upon the contingency that actually occurred.

147 In Re Fox's Estate, the testator left a quarter of his estate to his daughter Anna Charlotte Perry for life, and then to her children equally, unless upon her death the gift should lapse, upon which contingency it should pass to his daughter Fanny Sarah Fox.[171] Mrs Perry survived the testator but died having never had any children. The gift thus lapsed, not by her death but by her leaving no children. The gift nevertheless took effect under the rule in Jones v Westcomb. Greene MR described the rule in these terms:

Where a testator has provided for the determination of an estate in any of two or more events, and has then given a gift over expressly to take place in one only of those events, the court will, in the absence of any indication to the contrary, imply, by way of necessary implication, an intention on the part of the testator that the gift over shall take effect, not merely in the specified event, but on the happening of any of the events which were to determine the previous estate.[172]

148 Romer LJ, in a concurring judgment, made the following observation:

The principle is applicable, therefore, only in those cases where the court, looking at all the relevant circumstances of the case, including, of course, the will itself, comes to the conclusion that the testator must a fortiori have intended the disposition over to take effect in the event which has actually happened, although it is not the event which he has specified in his will as the one in which the gift over is take effect.[173]

149 In Hayles, Young J refers to the formulation of the rule in Theobald and considers that it is soundly criticised as 'impossibly restrictive'.[174] Young J appears to accept Mr Charles Rowland's statement that, had Theobald's formulation been adopted in Jones v Westcomb, the opposite result would have been reached. Mr Rowland argues that a testator can never have 'a fortiori' intended a gift over to operate in circumstances that he had not foreseen.[175] He argues that justice was only done in cases such as Re Keid, discussed below, by interpreting 'a fortiori' in a strange sense.[176]

150 I do not share Mr Rowland's and Young J's criticism. The sense in which the words 'a fortiori' are used in both Theobald and Re Fox's Estate is perfectly intelligible. A fortiori means 'from yet firmer ground' and introduces a fact that, if a prior fact is true, must be still more obviously true. Romer LJ, in Re Fox's Estate, put it thus:

Looking at all the circumstances of this case, can anyone doubt for one moment that, if the testator had been asked what was to happen to this share of Mrs Perry if she died without ever having had a child at all, the testator would have said: 'A fortiori the share is to go to my daughter Fanny'.[177]

The question is, if the testator had contemplated the contingency that occurred, is it obvious that the testator must have intended that the gift over operate? In Jones v Westcomb, it never occurred to the testator that his wife might not have been pregnant, but it was clear from the contingency penned in the will that, had he turned his mind to that possibility, he would have intended the gift over in favour of his wife to operate. The inference that the gift over was to take effect if his wife was never pregnant was ineluctable.

151 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.

152 In Re Bowen, Wynn-Parry J expressed the rule in a slightly different way. The testator made a will in which he left his estate on trust for his mother for her life, and after her death, to his uncle. The will also provided that, if his uncle should die during his mother's lifetime, his estate was to pass to his uncle's children. The testator's mother and uncle both predeceased him, but his uncle survived his mother. On its literal terms, the gift over could not take effect, and hence an intestacy would result.

153 Wynn-Parry J said that in applying the rule in Jones v Westcomb, 'the courts have considered what was the real contingency guarded against'.[178] His Honour stated that it was necessary 'to consider in the light of the will and the relevant circumstances what was the real contingency which this testator contemplated when making the gift to the children'.[179] His Honour found it relevant that the testator's nearest relations were his uncle and his uncle's children, and that he had appointed two of those children to be executors of his will. His Honour was satisfied that the plain intention of the testator was that his uncle's children should take if his uncle died before the date of distribution. If the testator had been asked whether his children were to take if his uncle survived his mother, but both had predeceased him, he would have unhesitatingly said that the children were to take.

154 The approach taken in Re Bowen was followed by Wanstall CJ in Re Keid, which involved the application of the forfeiture rule.[180] In her will, the testatrix left her estate to her son, with a gift over to his children if he predeceased her or failed to attain a vested interest, and another gift over to the testatrix's sisters. The son murdered the testatrix and so forfeited his entitlement. As the son died without issue, the question was whether the gift over in favour of the sisters took effect, or there was an intestacy. His Honour concluded that the real contingency against which the testatrix had to guard was the failure of the gift to the son so that she would die intestate. Accordingly, his Honour held that the Court should give effect to the gift over to the sisters on the failure of the gift to the son by forfeiture.

155 A gift over was considered in the context of the forfeiture rule in Re Robertson; Marsden v Marsden, an English case. There, the testator made a will leaving his estate to 'M', with a gift over to M's adopted daughter in the event that M die within the testator's lifetime.[181] M murdered the testator. Karminski J conceded that the testator could hardly have been expected to provide for his murder. His Honour considered that, as the testator's words were clear and precise, there was no justification for writing the omission into the will.

156 The testatrix in In re Jones; Jones v Midland Bank Trust Co Ltd, an English case decided in 1997, made a will leaving her estate to her son and, in the event of his predeceasing her, to her nephews.[182] The son forfeited his entitlement upon unlawfully killing the deceased. The trial judge concluded that the right inference to draw from the will was that the deceased, had she been asked what was to happen to her estate, would have wished her nephews to benefit. Nourse LJ, with whom Henry LJ and Sir Patrick Russell agreed, allowed the appeal. His Lordship said that the trial judge's decision involved speculation that was not permissible in the construction of wills. The contingency for which the testatrix had provided in plain terms had not occurred.

157 Davis v Worthington is an Australian case that concerned the forfeiture rule.[183] By her will, the testatrix left her estate to her murderer unless he should fail to survive her by 14 days, in which case her estate was to pass to a charity. Wallace J rejected the argument that the killer should be treated as though he had immediately predeceased the testatrix. His Honour declined to follow Re Callaway[184] and to treat the gift to the murderer as though it had lapsed. His Honour also rejected an approach whereby one first establishes the claim of the killer, then public policy steps in as a personal bar. Wallace J considered that each approach involved a fiction, the use of which was unnecessary in the case before him. His Honour found that the clear intention of the testatrix was that the charity should only take if her killer failed to survive her, which he did not. There was therefore an intestacy.

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.[185]

In my view, to conclude that the rule in Jones v Westcomb applies, the Court need not be satisfied that the testator intended the gift over to operate on any failure whatsoever of the primary gift, although of course the Court may be satisfied that that was the testator's intention in the appropriate case. The Court may give effect to the rule without interpreting the gift-over provision as though it covered any eventuality upon which the primary gift might fail.

159 On my understanding of the rule in Jones v Westcomb, the Court need only be satisfied that the testator must have intended that the gift over cover the contingency that actually occurred. In Re Fox's Estate, for example, the Court was satisfied that the testator would have intended the gift over to operate if Mrs Perry died childless. It cannot be said that nothing turns on this distinction. In general, it will be easier for a court to impute to the testator an intention that the gift over take effect on the contingency that actually occurred, rather than on any contingency causing the primary gift to fail.

160 In Re Lentjes, a decision of the New Zealand High Court, the testatrix made a will leaving her residuary estate to her husband, with a gift over to her friend.[186] Her husband was convicted of her manslaughter. Heron J declined to apply the rule in Jones v Westcomb to save the gift over. After examining cases falling on either side, his Honour concluded that a case by case approach was the only rule that could be confidently laid down. On the facts, his Honour considered that what he referred to as the literal, as opposed to the interpretative, approach was required. His Honour said:

In some situations a testator's will may, by its very structure, implicitly encompass all possibilities and when a forfeiture of entitlement operates a Court can accordingly accommodate the same within the intention expressed by the will. I think this will falls short of being capable of such an interpretation.[187]

Heron J concluded that the residuary estate fell on an intestacy.

161 The tension between the literal and intentionalist interpretation of wills is ancient. In the famous causa Curiana (Curius' case) in 92 BC,[188] the testator, Coponius, had no son at the time of making his will, but considered the possibility that he might have a son. He left his estate to his son or sons, including a postumus, ie a son born after his death, naming Curius as a substitute in the event that his son should die before coming of age at 14. No son was ever born. Scaevola pointed out on behalf of the heir who would take on an intestacy that a man must be born before he can die. On a literal interpretation of the will, Curius could not take unless the son had been born and died before coming of age. Crassus advocated on behalf of Curius that the true intention of the testator was that Curius should take in the event of no son coming of age. The centumviri found in favour of Curius.

162 In contrast, a literal approach was taken in the more recent case of In re Sinclair, which concerned a gift over to a charity.[189] By his will the testator left his whole estate to his wife, with a gift over to the Imperial Cancer Research Fund in the event that she fail to survive him for a month. The couple divorced four years after the will was made. Twenty years later, s 18A of the Wills Act 1837 (UK) was introduced, which provided that any devise or bequest to a former spouse should lapse. The gift to the wife therefore failed. The executor sought a determination from the Court on whether the gift over to the charity was effective or the estate fell on an intestacy, in which case the estate would pass to the testator's brother. The deputy judge declared that the estate fell on an intestacy. The charity appealed to the English Court of Appeal, which dismissed the appeal. Counsel for the charity did not pursue the argument that the gift over to the charity was saved by the rule in Jones v Westcomb. Slade LJ's impression was that counsel was right to take that course.

163 His Lordship nonetheless made several obiter observations on the rule. His Lordship said:

I have some sympathy with the fund, because, like the deputy judge, I have more that [sic] a sneaking suspicion that, if the testator had addressed his mind to the contingency which in the event happened, he would have wished the estate to go to the fund. However one cannot, I think, possibly say with any certainty that merely because this testator in 1958 intended that his estate should go over to the fund if his wife should predecease him, he would necessarily and a fortiori have intended that the same results should ensue if his marriage ended by divorce during his lifetime. As the deputy judge pointed out, the truth of the matter is that, when he made his will, he clearly did not address his mind in any way to the unhappy contingency of a future divorce. It would not, I think, be open to the court to rewrite the will by adding other specific contingencies to those clearly expressed in clause 4 on the basis of mere intelligent speculation as to what the testator might have intended if his marriage were to end in divorce.[190]

164 No doubt the testator did not turn his mind, when he made the will, to the contingency of his divorce and the introduction of s 18A of the Wills Act 1837 (UK). But nor did the testator in Jones v Westcomb turn his mind to the contingency that his wife might not be pregnant. The rule requires a court to determine what the testator would have intended in events unforeseen, not what he did intend in events he foresaw but for which he did not provide.

165 Slade LJ further considered that, if the Court was to rewrite the literal terms of the will, that could only be done by a process of necessary implication.

166 Ekert v Mereider concerned a testator who was murdered by his wife.[191] His wife was the principal beneficiary under his will. In the event that his wife fail to survive the testator for 28 days, there was a gift over to his child and a stepchild. The stepchild was his wife's child from a former marriage. Windeyer J rejected the rule whereby the killer is treated as having predeceased the testator. His Honour, following Re Peacock,[192] considered that the will should be interpreted in the ordinary way having regard to the fact that the killer cannot take, which will in some cases result in an increase in the interests of other members where the killer is a member of a class.

167 Turning to the rule in Jones v Westcomb, his Honour said:

the rule in Jones v Westcomb may properly be applied but not in order to bring about a result the court considers fair. I should add that in many cases it would be dangerous for a court to interpret a will based on presumed intentions. The present case would clearly be one of those. I do not see how a court could possibly find that a testator must have intended a child of his murderer (not being a child of his) to take in the event that he was murdered by the child's mother. I realise of course that the contingency is not one for which a testator can decently provide in his will but that does not mean that the court should imply an intention for which there is no sound basis.[193]

168 It is worth noting that his Honour did not consider that the rule in Jones v Westcomb was in principle inapplicable where the forfeiture rule causes the primary gift to fail and prevents the gift over from taking effect. On the right facts, it may be correct to conclude that the testator must have a fortiori intended the gift over to operate if the primary beneficiary was unable to take owing to the forfeiture rule. On the facts before his Honour, however, there was no sound basis for implying an intention that the gift over operate. His Honour therefore found for an intestacy.

169 Windeyer J referred with approval to Re Peacock, which finds support in Williams, Mortimer and Sunnucks[194] and Theobald.[195] The testator left the residue of his estate in equal shares to whoever should survive of his wife, stepson and son. His wife killed him and was barred from taking. The question on the summons was whether the wife's share fell on an intestacy to the son, or the son and stepson held the gift of the residue in equal shares. Upjohn J held that the gift was tantamount to a class gift, even though in strict terms the wife, stepson and son stood in a different relation to the testator. His Honour held that the gift to the wife did not lapse, but swelled the shares of the remaining members of the class, the stepson and son.

170 For convenience, I repeat the relevant provisions of the deceased's will:

1. I GIVE AND DEVISE the whole of my estate to Jemma. If she does not survive the following provisions shall apply.
2. I GIVE DEVISE AND BEQUEATH my residuary estate to my Trustee upon trust to:

(a) pay the sum of SEVENTY THOUSAND DOLLARS ($70,000.00) to my mother-in-law JEANNIE ELIZABETH DAY ('Jeannie') and, if she has predeceased me at the date of my death or dies within thirty (30) days of the date of my death to my brother-in-law CHRISTOPHER DAY.

(b) Pay the balance to my mother MARGARET CLARE EDWARDS and, if she has predeceased me at the date of my death or dies within thirty (30) days of the date of my death to:

(i) Pay the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) to Jeannie.

(ii) Pay the balance to the Peter MacCallum Cancer Institute to be used for cancer prevention, cancer education or patient care and treatment at or any purpose connected with the Institute, for which the receipt of the Treasurer or other officer shall be sufficient discharge to my Executor for the bequest.

171 Plainly, the contingency provided for in clause 4 has not occurred. Mrs Edwards has survived the deceased. By application of the cardinal principle, that a gift over will not take effect unless the precise contingency occurs, the gift-over provisions in clause 4 do not take effect. The gift of the deceased's entire estate would fall upon an intestacy. Because the forfeiture rule also prevents Mrs Edwards from taking upon an intestacy,[196] the estate would then pass to Megan.

172 The question then arises whether the gift-over provisions may be saved by the rule in Jones v Westcomb. In this case, there is the additional complication that there is not one gift over, but in effect, three. Because the deceased's mother, Margaret Edwards, predeceased him, the double gift-over clauses 4(b)(i) and (ii) are brought into effect. The three relevant gift overs are therefore:

(a) $70,000 to Mrs Day;

(b) $100,000 to Mrs Day (Margaret Edwards having predeceased the deceased); and

(c) the balance to Peter Mac.

173 In respect of each gift over the question is, if the deceased had been asked whether the gift over should operate in circumstances where Mrs Edwards survived him but forfeited her entitlement by killing the deceased, would he have said: 'A fortiori the gift over should take effect'?

174 In my view, it is not appropriate to infer from the mere existence of a gift-over provision that the 'real contingency guarded against' was an intestacy, and then from that fact imply that the gift over was to operate upon any circumstance in which the primary gift failed. It may be possible, in the appropriate case, to infer an intention that the gift over operate upon any circumstance causing the primary gift to fail. But in such a case the testator must a fortiori have intended that the gift over operate upon any failure whatsoever of the primary gift.

175 On the facts before me, I am unable to conclude that the gift-over provision in clause 4 was intended to operate upon any circumstance. It seems to me that the 'real contingency guarded against' in this case was that Mrs Edwards fail to survive the deceased.

176 The difficulty in this case is ascertaining the licence given by the rule in Jones v Westcomb to construe a gift-over provision as though it provided for the contingency that caused the primary gift to fail. Applying the test proposed by Romer LJ in Re Fox's Estate, I have more than a mere suspicion that, if the testator had been asked, 'what is to happen to the balance of your estate in the event that your wife murders you?', he would have said, 'it is still to pass to Peter Mac'. I am all the more confident of this answer in circumstances where the testator deliberately excluded from his will the very person who would take on an intestacy. A contrary intention can hardly be supposed. If the testator's preference was that Peter Mac should take rather than an intestacy if his wife should predecease him, I see no reason why his intention should be any different in the event that his wife should kill him. The question is whether satisfaction of that hypothetical intention, based on the will itself in the light of admissible extrinsic evidence, is sufficient for the implication of that contingency into the gift-over provision.

177 Unfortunately, in my view, the authorities on the rule in Jones v Westcomb indicate that only a fortiori contingencies may be written into the will, viz, contingencies that may implied by necessary implication. In Jones v Westcomb, as in Re Fox's Estate and Re Bowen, and indeed in Curius' case, the contingency that the testator actually provided for in the will encompassed the contingency that was excluded. In each case, the wording of the provision evinced a broader purpose within which the unforeseen contingency fell. Although the possibility cannot be excluded, 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.

178 The rule in Jones v Westcomb is not an exception to the principles of will construction outlined by Isaacs J in Fell v Fell,[197] but in fact really an application of them. It is the existence of an a fortiori intention - gleaned from the will itself read as a whole in the light of any admissible extrinsic evidence - that makes the implication of the contingency a necessary implication.

179 In my view, though I might be satisfied that the testator would have intended, had he been asked, that the gift over of the balance of his estate pass to Peter Mac, that inference is not supported a fortiori by the contingency actually provided for under the will. Accordingly, the gift over in favour of Peter Mac must fail.

180 The gift over to Mrs Day is analogous to that considered by Windeyer J in Ekert. In that case, his Honour was hesitant to presume an intention that the testator would have wished the daughter of his wife to benefit in circumstances where his wife had murdered him. For similar reasons, I am not satisfied in this case that the testator would have intended that the mother of his killer benefit on the facts that have occurred. There can certainly be no a fortiori intention to that effect.

181 For the foregoing reasons, I have concluded that Mrs Edwards is prevented by operation of the forfeiture rule from taking the estate of the deceased under clause 3 of the deceased's will. I have concluded that it is inappropriate to impose a constructive trust for the benefit of beneficiaries to be determined by the Court. Having undertaken the task of construing the will, I have decided that the gift-over provisions in clause 4 cannot take effect. Accordingly, the estate falls on an intestacy. The deceased being barred from taking on an intestacy, subject to hearing from the parties, I order that the estate be distributed to the deceased's daughter Megan.

182 I shall hear the parties on the form of order and on costs.

[1] R v Edwards [2012] VSC 138 (24 April 2012) [28].

[3] (1711) Prec Ch 316; 24 ER 149.

[4] Re Tucker [1920] NSWStRp 100; (1920) 21 SR (NSW) 175; Re Sangal; Perpetual Executors and Trustees Association of Australia Ltd v House [1921] VicLawRp 64; [1921] VLR 355.

[5] [1940] HCA 20; (1940) 63 CLR 691.

[6] (1994) 33 NSWLR 269.

[7] (1985) 2 NSWLR 188.

[8] (1987) 9 NSWLR 433.

[9] [1992] VicRp 38; [1992] 1 VR 583.

[10] (Unreported, Supreme Court of Victoria, Nathan J, 24 March 1994).

[11] Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147.

[12] Troja v Troja (1994) 33 NSWLR 269, 284.

[13] [1946] HCA 16; (1946) 72 CLR 1.

[15] Forfeiture Act 1995 (NSW).

[16] [1992] VicRp 38; [1992] 1 VR 583.

[17] Public Trustee v Fraser (1987) 9 NSWLR 433, 443-4.

[18] (1997) A Crim R 103.

[19] Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 709.

[20] Troja v Troja (1994) 33 NSWLR 269, 298-9; Josifovski v Velevski [2013] NSWSC 1103 (14 August 2013) [28].

[21] Troja v Troja (1994) 33 NSWLR 269, 283, 299.

[22] Re Soukup (1997) A Crim R 103, 113-14.

[23] Troja v Troja (1994) 33 NSWLR 269, 299.

[24] Re Soukup (1997) A Crim R 103, 111, 115, 118.

[25] Troja v Troja (1994) 33 NSWLR 269, 294-6.

[27] [1892] 1 QB 147.

[28] Re Tucker [1920] NSWStRp 100; (1920) 21 SR (NSW) 175, 180.

[29] Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, 152.

[33] (1830) 4 Bli NS 194; 5 ER 70.

[34] [1911] P 108.

[36] [1914] P 1.

[40] Re Tucker [1920] NSWStRp 100; (1920) 21 SR (NSW) 175, 180.

[41] [1940] HCA 20; (1940) 63 CLR 691.

[44] See, eg, Minasian v Aetna Life Ins Co, 3 NE (2d) 17 (1936).

[45] (1985) 2 NSWLR 188, 192.

[46] [1921] 3 KB 327.

[47] [1927] 2 KB 311.

[48] (1997) A Crim R 103, 109.

[49] [1933] 1 KB 822.

[50] [1971] 2 QB 554.

[52] [1964] 2 QB 745.

[53] [1970] 2 QB 626, 640.

[54] [1985] Ch 85.

[56] Re Soukup (1997) A Crim R 103, 110.

[59] John G Ross Martyn et al, Theobald on Wills (17th ed, Sweet & Maxwell, 2010), 189.

[60] John Ross Martyn and Nicholas Cannick, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (20th ed, Sweet & Maxwell, 2013) 1315.

[62] Dunbar v Plant [1998] Ch 412, 435.

[67] (1985) 2 NSWLR 188.

[71] (1987) 9 NSWLR 433.

[75] [1992] VicRp 38; [1992] 1 VR 583.

[76] (Unreported, Supreme Court of New South Wales, Powell J, 20 November 1985).

[77] (Unreported, Supreme Court of New South Wales, Powell J, 14 August 1992).

[78] Re Keitley [1992] VicRp 38; [1992] 1 VR 583, 587.

[79] (Unreported, Supreme Court of Victoria, Nathan J, 24 March 1994).

[80] Troja v Troja (1994) 33 NSWLR 269, 278 (Kirby P).

[89] James Barr Ames, Lectures on Legal History (Harvard University Press, 1913) 310-11.

[90] Troja v Troja (1994) 33 NSWLR 269, 286 (Kirby P).

[91] [1940] HCA 20; (1940) 63 CLR 691, 709.

[92] Troja v Troja (1994) 33 NSWLR 269, 294 (Mahoney JA).

[106] K Mason, J W Carter and G J Tolhurst, Restitution Law in Australia (LexisNexis Butterworths, 2nd ed, 2008) 756.

[107] John Ross Martyn and Nicholas Cannick, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (20th ed, Sweet & Maxwell, 2013) 1316.

[108] (1997) A Crim R 103.

[109] Re Hall; Hall v Knight [1914] P 1, 7.

[110] Re Soukup (1997) A Crim R 103, 108.

[112] See above paragraph [63].

[113] Re Soukup (1997) A Crim R 103, 112.

[116] 'From an evil cause an action cannot arise'.

[117] [1937] 2 KB 197, 219. See also Hardy v Motor Insurers' Bureau [1964] 2 QB 745, 767-8 (Diplock LJ); Gardner v Moore [1984] 1 AC 548, 558; Dunbar v Plant [1998] Ch 412, 432 (Phillips LJ).

[118] Troja v Troja (1994) 33 NSWLR 269, 296 (Mahoney JA).

[120] Re Giles [1972] Ch 544.

[121] Re Soukup (1997) A Crim R 103, 114.

[122] Troja v Troja (1994) 33 NSWLR 269, 298.

[123] Re Thorp and the Real Property Act (1961) 80 WN (NSW) 61; Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407; Ekert v Mereider (1993) 32 NSWLR 729; Nay v Iskov [2012] NSWSC 598 (2 May 2012); Josifovski v Velevski [2013] NSWSC 1103 (14 August 2013).

[124] Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407.

[125] Troja v Troja (1994) 33 NSWLR 269, 299.

[126] [2007] HCA 22; (2007) 230 CLR 89.

[127] Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).

[128] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, 150-1 (citations included).

[130] Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580, 591 (Barwick CJ). See also Engebretson v Bartlett [2007] VSC 163 (25 May 2007) [54]-[56] (Bell J).

[131] See above paragraph [83].

[132] Shaw v Yarranova Pty Ltd [2006] VSC 45 (23 February 2006) [66]-[68] (Bell J).

[133] See above paragraph [79].

[134] See Dunbar v Plant [1998] Ch 412, 425 (Mummery LJ).

[135] Death by dangerous driving has not attracted the forfeiture rule in the UK: John Ross Martyn and Nicholas Cannick, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (20th ed, Sweet & Maxwell, 2013) 1316.

[136] R v Lavender [2005] HCA 37; (2005) 222 CLR 67, 70.

[137] [1989] 1 Qd R 351, 355.

[138] (1993) 33 NSWLR 154, 170.

[139] (1993) 32 NSWLR 729, 732.

[140] Re Tucker [1920] NSWStRp 100; (1920) 21 SR (NSW) 175; Re Sangal; Perpetual Executors and Trustees Association of Australia Ltd v House [1921] VicLawRp 64; [1921] VLR 355.

[141] (1711) Prec Ch 316; 24 ER 149. The case is also preserved in 1 Eq Ca Abr 245; 21 ER 1022 and [1710] EngR 22; (1710) Gilb Rep 74; 25 ER 52.

[142] Re Bailey [1951] Ch 407, 411, 421; Re Sinclair [1985] Ch 446, 455.

[143] Public Trustee v Hayles (1993) 33 NSWLR 154, 161-2.

[144] Re Bowen [1949] Ch 67.

[145] (Unreported, Supreme Court of New South Wales, Waddell CJ in Eq, 15 February 1993).

[146] See above paragraphs [95]-[96].

[147] Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, 274 (emphasis in original) (citations omitted).

[148] Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, 615.

[150] American Law Institute, Restatement (Third) of Restitution and Unjust Enrichment (2011).

[155] See above paragraphs [87]-[97].

[156] See, eg, Re Thorp and the Real Property Act (1961) 80 WN (NSW) 61; Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407; Nay v Iskov [2012] NSWSC 598 (2 May 2012); Josifovski v Velevski [2013] NSWSC 1103 (14 August 2013).

[157] See above para [112].

[158] Public Trustee v Hayles (1993) 33 NSWLR 154, 160.

[159] Brought about by the Probate Act 1890 (NSW).

[160] Public Trustee v Hayles (1993) 33 NSWLR 154, 171.

[162] Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, 615.

[163] Rasmanis v Jurewitsch (1969) 70 SR (NSW) 407. In the latter case, the two survivors hold the victim's one-third interest on trust for the innocent survivor. The survivors hold the remaining two-thirds as joint tenants.

[164] Boyes v Cook (1880) 14 Ch D 53, 56.

[165] John G Ross Martyn et al, Theobald on Wills (17th ed, Sweet & Maxwell, 2010) 285; Marley v Rawlings [2014] UKSC 2; [2014] 2 WLR 213.

[166] (1993) 33 NSWLR 154, 164.

[167] Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, 615-16 (citations omitted).

[168] (1711) Prec Ch 316; 24 ER 149. The case is also preserved in 1 Eq Ca Abr 245; 21 ER 1022 and [1710] EngR 22; (1710) Gilb Rep 74; 25 ER 52.

[169] Re Bailey [1951] Ch 407, 411, 421; Re Sinclair [1985] Ch 446, 455.

[170] John G Ross Martyn et al, Theobald on Wills (17th ed, Sweet & Maxwell, 2010) 651.

[171] [1937] 4 All ER 664.

[173] C J Rowland, 'The Construction of Wills to Take Account of Unforeseen Circumstances Affecting Their Operation: Part I' (1993) 1 Australian Property Law Journal 87, 107.

[174] (1993) 33 NSWLR 154, 169.

[175] C J Rowland, 'The Construction of Wills to Take Account of Unforeseen Circumstances Affecting Their Operation: Part I' (1993) 1 Australian Property Law Journal 87, 107.

[177] [1937] 4 All ER 664.

[178] Re Bowen [1949] Ch 67, 70.

[180] [1980] Qd R 610.

[181] (1963) 107 Sol Jo 318.

[182] (1997) 141 SJ LB 108.

[183] [1978] WAR 144.

[184] [1956] 2 All ER 451.

[185] [2006] NSWSC 1398 (6 December 2006) [20] (emphasis added).

[189] [1985] 1 Ch 446.

[191] (1993) 32 NSWLR 729.

[192] [1957] Ch 310.

[193] Ekert v Mereider (1993) 32 NSWLR 729, 732-3.

[194] John Ross Martyn and Nicholas Cannick, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (20th ed, Sweet & Maxwell, 2013) 1317.

[195] John G Ross Martyn et al, Theobald on Wills (17th ed, Sweet & Maxwell, 2010) 190.

[196] Re Tucker [1920] NSWStRp 100; (1920) 21 SR (NSW) 175; Re Sangal; Perpetual Executors and Trustees Association of Australia Ltd v House [1921] VicLawRp 64; [1921] VLR 355.

[197] [1922] HCA 55; (1922) 31 CLR 268.