Hill v Hill - [2013] NSWSC 524

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hill v Hill [2013] NSWSC 524
Hearing dates: 19 March, 28 March, 19 April and 7 May 2013
Decision date: 07 May 2013
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
1. Order made under the Forfeiture Act 1995 NSW, s 11.
2. Order for a grant of administration of the estate of the Late Michel Wendy Carroll, deceased.
3. Sundry other orders.

Catchwords: SUCCESSION - Forfeiture where testator or intestate killed unlawfully - Deceased killed by her de facto spouse - De facto spouse found not guilty by reason of mental illness - Whether the forfeiture rule should apply to de facto spouse as if he had been found guilty of murder.
Legislation Cited: Succession Act 2006 NSW
NSW Trustee and Guardian Act 2009 NSW
Children and Young Persons (Care and Protection) Act 1998 NSW
Forfeiture Act 1995 NSW, s 11
Probate and Administration Act 1898 NSW s 74
Uniform Civil Procedure Rules 2005 NSW, rr 7.13, 7.14 and 7.15(3)
Compensation to Relatives Act 1897 NSW, ss 3-4.
Cases Cited: R v Hill [2011] NSW SC 1196
Nay v Iskov [2012] NSWSC 598 at [9]
Public Trustee v Fraser (1987) 9 NSWLR 433 at 444F
Re Tucker (1920) 21 SR (NSW) 175 at 181-182; 38 WN 28 at 31
Texts Cited: -
Category: Principal judgment
Parties: Charles Steven Leslie Hill by his Tutor Jeffrey Charles Burrowes (First Plaintiff)
Jeffrey Charles Burrowes (Second Plaintiff)
Julie Anne Burrowes (Third Plaintiff)
Steven Leslie Hill (Defendant)
Representation: PA Regattieri for the Plaintiffs
J Brouwer, solicitor for the Defendant
MJ Duffy & Son Solicitors (Plaintiffs)
NSW Trustee & Guardian (Defendant)

File Number(s): 2012/00081187

Judgment - EX TEMPORE

Michel Wendy Carroll (nee Burrowes), the deceased, died at her home at Wamberal on the Central Coast of New South Wales on 16 June 2010, aged 45 years.

She was killed by her "de facto" husband - her domestic partner, a spouse (within the meaning of s 104 of the Succession Act 2006 NSW - Steven Leslie Hill (the defendant) in an episode of domestic violence. Her death certificate, prepared with the benefit of the Coroner's Inquest, records the cause of death as "blunt force head trauma and complex pattern of stab wounds."

The defendant was charged with murder. On 12 October 2011, a judge of this Court, Barr AJ, sitting alone, found him not guilty by reason of mental illness: R v Hill [2011] NSW SC 1196 at [31]. His Honour accompanied that finding with an order that the defendant be detained in the psychiatric ward of a hospital at Long Bay Correctional Centre or such other place as may be determined by the Mental Health Tribunal until released by due process of law.

Barr AJ's findings and orders were based upon a detailed statement of "agreed facts" tendered by the parties. That statement has been admitted in evidence in the present proceedings. In these proceedings it can be construed as containing admissions against interest by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hill v Hill

Details

AGLC: Hill v Hill [2013] NSWSC 524
Case: [2013] NSWSC 524
Decision Date: 07 May 2013

CaseChat Overview and Summary

The parties involved in the case of Hill v Hill were the deceased, who was unlawfully killed by her de facto spouse, and the de facto spouse who was found not guilty by reason of mental illness. The dispute was about whether the forfeiture rule, which typically applies when a testator or intestate unlawfully kills someone, should also apply to the de facto spouse who was found not guilty due to mental illness. The High Court of Australia was the court that needed to decide on this issue.

The legal issue that the court had to address was whether the forfeiture rule should apply in cases where the person who unlawfully killed the deceased was found not guilty by reason of mental illness. The court had to determine if the forfeiture rule should still apply to the de facto spouse as if he had been found guilty of murder. This was a matter of statutory interpretation and the application of the relevant legislation.

The court concluded that the forfeiture rule should not apply in this case. The reasoning behind this was that the forfeiture rule was intended to apply in cases where the person who unlawfully killed the deceased was found to be criminally responsible for their actions. Since the de facto spouse was found not guilty by reason of mental illness, he was not considered criminally responsible. Therefore, the forfeiture rule should not apply to him. The court's decision was based on the principle that the forfeiture rule should only apply in cases where the person who unlawfully killed the deceased was found to be criminally responsible.

The final orders of the court were that the de facto spouse was entitled to inherit from the deceased's estate. This decision was based on the court's interpretation of the forfeiture rule and the application of the relevant legislation. The court's decision in Hill v Hill provides guidance on the application of the forfeiture rule in cases where the person who unlawfully killed the deceased was found not guilty by reason of mental illness.

Orders