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. It is a long-standing rule under the law of succession known as the forfeiture rule. Another way of expressing the rule would be to say that no person can obtain or enforce any rights resulting from their crime, including any interest the offender might have as a beneficiary under the victim’s will.
In the Estate of Crippen
Dr Crippen (the testator) had been found guilty and sentenced to death for the wilful murder of his wife, who died intestate. Following the dismissal of his appeal, Crippen made a will appointing his mistress as executor and sole beneficiary.
In the Estate of Crippen concerned an application made by relatives of his wife to be granted administration of her estate in place of the mistress, who could have otherwise applied for a grant of administration as Crippen’s legal personal representative. In acceding to the application, Sir Samuel Evans, the President of the Probate Division, said:
“It is clear that the law is that no person can obtain, or enforce, any rights resulting to him from his crime; neither can his representative, claiming under him, obtain or enforce any such rights. The human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence.”
In the Estate of Crippen [1911] P 108, 112.
What is a gift over?
When a testator creates a will, they nominate beneficiaries to inherit the assets of their deceased estate. A problem arises, however, if a named beneficiary predeceases the testator. The legal solution to this problem is for a testator to make a gift over in their will, naming a substitute beneficiary just in case the original beneficiary cannot inherit. There are often special conditions or contingencies attached to these bequests that a beneficiary must fulfil before they can inherit or so they can retain their inheritance.
A gift over can be any asset bequeathed in a will, including a legacy, real property, shares or even the entire residual estate. The term refers to allowing a substitute beneficiary to “take over” the gift from the original beneficiary. A gift over means the substitute beneficiary is a second recipient if the primary beneficiary dies. A substitute beneficiary may be one individual or a category of people, such as the deceased’s children or grandchild.
Background
Edward Savage (the deceased) was murdered by his daughter, Gail Beazleigh, on 17 July 2000. She was convicted of that crime on 27 November 2002 and sentenced to life imprisonment. Her husband was an accessory after the fact.
The deceased was 51 years of age at the time of his death. Under his last will, he appointed his brother, John Savage (the applicant), 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. There was also a gift over provision in the following 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”.
Savage v Savage & Ors [2023] QSC 280 at [2]
The deceased had three children – Steven (the first respondent), Edward and Gail. Edward died on 6 January 1997, leaving two children, Tiffany and Edward (the second and third respondents). Gail has three children, Tiarna, Megan and Emmalee (the fourth, fifth and sixth respondents). All respondents are adults.
Probate was granted on 17 November 2000; 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 the determination of the question:
whether on the proper 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.
Savage v Savage & Ors [2023] QSC 280 at [4]
The matter
In Savage v Savage & Ors [2023] QSC 280 the Court held it was clear that, by her murderous act, Gail forfeited her interest as beneficiary under her father’s will. Classification as to whether the gift over provision in the deceased’s will is adequate to pass what, but for the forfeiture, would have been their mother’s share of her father’s estate to her three children.
The rule in Jones v Westcomb provides that where a testator’s gift takes effect on a specified event, the Court can find that it takes effect on the happening of some other event instead if it is satisfied that the other event accords with the testator’s intentions. Following the same line of reasoning, the Court was unable to read the gift over provision as though the deceased intended that his gift to his daughter would pass to her children if she murdered him.
The contingency for the gift over in question not having occurred, and there being no other basis for holding that the provision was adequate to pass what, but for the forfeiture, would have been Gail’s share of her father’s estate to her three children, the executor must distribute that part of the net estate following the other terms of the will.
The decision
The Court ordered that Gail’s share of the estate that she would have taken but for her murdering 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 Gail’s share of the estate.