Savage v Savage & Ors [2023] QSC 280

Davis v Worthington [1978] WAR 144, cited Edwards v State Trustees Ltd (2016) 54 VR 1, cited Egan v O'Brien [2006] NSWSC 1398, cited

Ekert v Mereider (1993) 32 NSWLR 729, cited

Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, cited

In the Estate of Crippen [1911] UKLawRpPro 4; [1911] P 108, cited

In the Estate of Hall [1913] UKLawRpPro 28; [1914] P 1, not followed

Jones v Westcomb (1711) Prec Ch 316; 24 ER 149, cited

Pike v Pike [2015] QSC 134, cited

Public Trustee v Hayles (1993) 33 NSWLR 154, cited

Re Bailey [1951] Ch 407, cited

Re Edwards; State Trustees Ltd v Edwards [2014] VSC 392, followed

Re Fox's Estate [1937] 4 All ER 664, followed

Re Keid [1980] Qd R 610, cited

Re McIlwraith [1959] VR 720, cited

Re Rattle (No 2); Equity Trustees Ltd v Halstead [2018] VSC 700, cited

Re Rowney [1992] QSC 66, cited

Re Sinclair [1985] Ch 446, cited

Re Stacey, deceased [1949] St R Qd 244, cited

Re Stone [1989] 1 Qd R 351, not followed

Re Tucker [1920] NSWStRp 100; (1920) 21 SR (NSW) 175, not followed

Sadleir v Kahler [2018] QSC 67; [2019] 1 Qd R 52, cited

The Trust Company Limited v Gibson [2012] QSC 183, cited

Troja v Troja (1994) 33 NSWLR 269, cited

Verrall v Jackson [2006] QSC 309, cited

SL Philippou for the fourth, fifth and sixth respondents

The first respondent appeared on his own behalf Bennett Carroll Solicitors for the fourth, fifth and sixth respondents

• [1] The deceased, Edward Erle Savage, was murdered by his daughter, Gail Marie Beazleigh, on 17 July 2000. She was convicted of that crime on 27 November 2002

and sentenced by Ambrose J to imprisonment for life. Her husband was also dealt with, as an accessory after the fact.

• [2] The deceased was 51 years of age at the time of his death. Under his last will1, he appointed his brother, the applicant, John Thomas Savage, as executor and trustee and left the whole of his estate to such of his children as survived him in equal shares upon each child attaining the age of 25 years.2 There was also a gift over provision. It was in these terms:

"[I]n the event of any such child of mine predeceasing me and leaving issue then such issue shall take and if more than one equally between them the share to which his her or their parent would have been entitled under this my Will".3

• [3] The deceased had three children - the first respondent, Steven Douglas Savage, Edward John Savage and Ms Beazleigh. Edward John Savage died on 6 January 1997 leaving two children, the second and third respondents, Tiffany Amanda Savage and Edward Ashley Savage. Ms Beazleigh has three children, the fourth, fifth and sixth respondents, Tiarna Gina-Marie Beazleigh, Megan Elizabeth Beazleigh and Emmalee Josephine Beazleigh. All respondents are adults.

• [4] Probate of the will was granted on 17 November 2000 and, since then, one-third of the net estate has been distributed to the first respondent. The remainder, being approximately $519,000, is held by the applicant on trust pending determination of the question which lies at the heart of this application, viz., whether on the true construction of the will the fourth, fifth and sixth respondents are entitled to a distribution of what would have been their mother's share of her father's estate but for her crime.

• [5] If a person is criminally responsible for the death of another, and that death is a material fact in the vesting of property in favour of that person, the interest in that property is forfeited.4 In the law of succession, this is widely known as the forfeiture rule, and it is one of long-standing.5 Another way of expressing the rule would be to say that no person can obtain, or enforce, any rights resulting to him or her by their own crime including any interest the offender might have as a beneficiary under the will of the victim.6 As Sir Samuel Evans said in a case involving the administration of the estate of the wife of Dr Crippen, the "human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence".7 It follows that, by her murderous act, Ms Beazleigh forfeited her interest as beneficiary under her father's will.

4 Pike v Pike [2015] QSC 134, [10]; Edwards v State Trustees Ltd (2016) 54 VR 1, [2].

5 Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, 152, 156.

6 Beresford v Royal Insurance Co Ltd [1937] 2 KB 197, 219; Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 709;

Troja v Troja (1994) 33 NSWLR 269, 294-298, 299.

1. In the Estate of Crippen [1911] UKLawRpPro 4; [1911] P 108, 112. Dr Crippen was convicted of the murder of his wife in London in 1910 and condemned to death. She died intestate. The motive for the killing was said to be to enable Crippen to take up a life with his mistress. Two weeks before he was hanged, Crippen made a will appointing his mistress as executor and sole beneficiary. This case concerned an application made by relatives of his wife to be granted administration of her estate in place of the mistress who would have otherwise been entitled to the grant of administration as Crippen's personal representative.

• [7] What is not so clear is whether the gift over provision in the subject will is effective to pass what, but for the forfeiture, would have been Ms Beazleigh's share of her father's estate to her three children.

• [8] Gift over provisions are commonly included in wills to, relevantly, avoid the doctrine of lapse by providing for a gift over to another beneficiary in the event that the primary beneficiary dies before the testator. The specified contingency - the death of the primary beneficiary - is obviously key. Thus, if the court adopts a literal approach to the construction of the will in a case such as this where the contingency did not occur, the gift will not pass to the contingent beneficiaries (here, the fourth, fifth and sixth respondents) but will fall into residue to be distributed in accordance with the other terms of the will. This literal construction has been applied in a long line of cases where it was held that the relevant gift over did not take effect unless the exact contingency had occurred.8
• [9] While the results in those cases are consistent with the well-established principle of construction that a court cannot give effect to an intention that is neither expressed nor implied in the words used in the testamentary instrument when read with the circumstances in which the will was made,9 different results have obtained when the rule in Jones v Westcomb10 has been pressed into service. In those cases, although the exact contingency upon which the gift over was to take effect had not occurred, it was held that the gift over must have been intended to take effect on the happening of the event that actually occurred (here, for example, forfeiture of Ms Beazleigh's interest).11
• [10] The precise scope of the rule in Jones v Westcomb remains elusive despite its antiquity. It has been the subject of much judicial consideration12 through which reference is often made to what was said by Romer LJ in Re Fox's Estate:13

"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."

• [11] In Re Edwards; State Trustees Ltd v Edwards,14 McMillan J carefully analysed what

8 See, for example, Re Bailey [1951] Ch 407 at 411, 421; Davis v Worthington [1978] WAR 144; Re

Sinclair [1985] Ch 446, 455; Ekert v Mereider (1993) 32 NSWLR 729; Re Edwards; State Trustees Ltd v Edwards [2014] VSC 392 (an appeal from this decision on a different point was dismissed: Edwards v State Trustees Ltd (2016) 54 VR 1); Re Rattle (No 2); Equity Trustees Ltd v Halstead [2018] VSC 700.

9 See Re McIlwraith [1959] VR 720, 724.

10 (1711) Prec Ch 316; 24 ER 149.

11 See, for example, Re Fox's Estate [1937] 4 All ER 664; Re Stacey, deceased [1949] St R Qd 244; Re Keid [1980] Qd R 610; Re Rowney [1992] QSC 66; The Trust Company Limited v Gibson [2012] QSC 183; Sadleir v Kahler [2018] QSC 67; [2019] 1 Qd R 52. Cf. Verrall v Jackson [2006] QSC 309 (where Margaret Wilson J held that the rule could not save the gift over).

12 Ibid. And see Public Trustee v Hayles (1993) 33 NSWLR 154, 169.

13 [1937] 4 All ER 664, 666.

14 [2014] VSC 392. And see fn 8.

has been said about the scope of the rule in the courts as well as in academic writings15 and, after endorsing the statement by Romer LJ in Re Fox's Estate, her Honour observed:

"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."16

• [12] I respectfully adopt those observations. As later discussed in the same case, before the rule in Jones v Westcomb can be deployed to save a gift over provision in a will, the court must be satisfied that the testator intended that the gift over covers the contingency that actually occurred "rather than on any contingency causing the primary gift to fail".17 Only a fortiori contingencies "may be written into the will" - that is to say, "contingencies that may be implied by necessary implication" - and, as such, "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".18 As Windeyer J remarked in Ekert v Mereider:19

"[T]he 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."

• [13] Following the same line of reasoning, I am unable to read the gift over provision in the subject will as though it was intended to cover any eventuality under which the primary gift did not take effect.20 Nor can it be concluded as a matter of necessary implication that the deceased must have intended his gift to his daughter would pass to her children if he was murdered by her. The rule in Jones v Westcomb has no application.

• [14] Another approach that has been taken to avoid the failure of a gift over in cases like this is to treat the disposition as if the primary beneficiary died immediately before

18 Ibid, [177]. And see Re Keid [1980] Qd R 610, where Wanstall CJ said of the rule: "The principle applies in a given case of the court, after looking at all the relevant circumstances including the will, is able to conclude that the testator must a fortiori have intended the gift over to take effect in the event which has actually happened." (at 614).

19 (1993) 32 NSWLR 729, 732-733.

20 To paraphrase what was said by Young CJ in Eq in Egan v O'Brien [2006] NSWSC 1398, [20].

the testator.21 However, as Dal Pont and Mackie have commented, this "fictional approach ... is problematic in principle" 22 and "enjoys few judicial admirers".23 For the reasons expressed by Windeyer J in Ekert v Mereider,24 I would not follow it.

• [15] Lastly, there is some authority for finding the existence of a constructive trust where the evidence permits to "avoid unconscionability".25 In this way, the court "makes the murderer hold the estate on trust for the person [or persons] it thinks appropriate".26 The problem though with this approach is that "it is premised on the killer taking legal title to the gift in question" and for that reason "sits uncomfortably with the core public policy underscoring the forfeiture rule, which by definition assumes that the killer takes nothing (forfeits) under the testator's will".27 I think that is right but even if it is not, the evidence adduced on the hearing of this application would be quite insufficient to impute a trust for the benefit of the fourth, fifth and sixth respondents of what would have been their mother's share of the estate.28
• [16] For these reasons, the contingency for the gift over in question not having occurred, and there being no other basis for holding that the provision was effective to pass what, but for the forfeiture, would have been Ms Beazleigh's share of her father's estate to her three children, that part of the net estate must be distributed in accordance with the other terms of the will.

• [17] As such, it will be ordered that the share of the estate that the mother of the fourth, fifth and sixth respondents would have taken but for her murder of the deceased shall be distributed as to one-half to the first respondent, one-quarter to the second respondent and one-quarter to the third respondent. Given the uncertainty regarding the effect of the provision in question, it is appropriate that each party's costs be assessed on an indemnity basis and paid from the same share, so an order to that effect will also be made.

21 In the Estate of Hall [1913] UKLawRpPro 28; [1914] P 1; Re Tucker [1920] NSWStRp 100; (1920) 21 SR (NSW) 175; Re Stone [1989] 1 Qd R 351,

22 G E Dal Pont and K F Mackie, Law of Succession, 2nd Edition, Lexis-Nexis, [7.62].

23 Ibid, [7.59]. See, for example, Ekert v Mereider (1993) 32 NSWLR 729, 731-732; Public Trustee v

Hayles (1993) 33 NSWLR 154, 170; Egan v O'Brien [2006] NSWSC 1398, [19]; Re Edwards; State

Trustees Ltd v Edwards [2014] VSC 392, [106].

24 (1993) 32 NSWLR 729, 731-732.

25 Public Trustee v Hayles (1993) 33 NSWLR 154, 164.

26 Ibid, 171. And see Egan v O'Brien [2006] NSWSC 1398, [11].

27 G E Dal Pont and K F Mackie, Law of Succession, 2nd Edition, Lexis-Nexis, [7.64]. And see Re Edwards; State Trustees Ltd v Edwards [2014] VSC 392, [130]-[139].

28 The fourth, fifth and sixth respondents were very young when their grandfather was killed (they were then aged, 4, 3 and 1 respectively) and had limited contact with him. They received gifts from him on the occasion of their birthdays and at Christmas, but were not financially dependent.