From: Neil Foster <neil.foster@newcastle.edu.au>
To: obligations@uwo.ca
Date: 27/08/2014 05:45:22 UTC
Subject: ODG: Forfeiture of gift where beneficiary kills the testator
Dear Colleagues;
While only a single judge decision, the case of Re Edwards; State Trustees Ltd v Edwards [2014] VSC 392 (22 August 2014) http://www.austlii.edu.au/au/cases/vic/VSC/2014/392.html raises so many fascinating issues, and deals with them in such detail, that I thought it was worth mentioning here. In particular
  1. At common law, in the absence of legislative assistance, can a court relieve a beneficiary under a will who has unlawfully killed the testator from the forfeiture rule? The judge considers not, while having to sort through many competing decisions. The wife had killed the husband in a domestic violence context, but was still found guilty of something resembling murder.
  2. If a gift fails due to the application of the forfeiture rule, how should the rest of the provisions be interpreted? There were gifts over in the case of the death of the wife, but that of course had not happened; there was a worthy charity which was named as one of the residual beneficiaries, apparently at the deliberate expense of the daughter of the testator who was not named in the will. But the judge, having done what he could to read the provisions differently, concluded that the whole will had to fail, an intestacy ensued, and since the wife (because of the forfeiture rule) could not take on intestacy, the daughter ended up taking under those provisions.
I have a strong suspicion that the decision might be overturned on appeal in Victoria, but it is so tightly and carefully reasoned that I suspect that it would be upheld if it ever reached the High Court. At any rate, it may provide colleagues teaching Succession courses with a good set of facts for an exam!
Regards
Neil



Neil Foster
Associate Professor
Newcastle Law School
Faculty of Business and Law

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