In the Estate of LYNNE ANNE LUXTON - [2006] SASC 371

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of LYNNE ANNE LUXTON
[2006] SASC 371
Judgment of The Honourable Justice Gray
12 December 2006
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION
Application to determine whether a person convicted of the murder of a testator can enter an appearance to a citation to propound the will of the deceased - discussion of the forfeiture rule and its application - Held: by application of the forfeiture rule the applicant has no interest in the will and therefore has no basis to enter an appearance to the will.
R v Evans [2005] SASC 184; Cleaver & Ors v Mutual Reserve Fund Life Association [1892] 1 QB 147; Helton v Allen (1940) 63 CLR 691; Rasmanis v Jurewitsch & Anor [1970] 1 NSWR 650; Troja v Troja (1994) 33 NSWLR 269; Rivers v Rivers [2002] SASC 437; Public Trustee v Fraser (1987) 9 NSWLR 433 ; Public Trustee v Evans (1985) 2 NSWLR 188 ; Re Keitley [1992] 1 VR 583 ; Public Trustee v Hayles (1993) 33 NSWLR 154; Kemperle v Public Trustee [1985] NSWSC (unreported, Powell J, 20 November 1985); Bain v Morabito [1992] NSWSC (unreported, Powell J, 14 August 1992) ; Ekert v Mereider (1993) 32 NSWLR 729, considered.

In the Estate of LYNNE ANNE LUXTON
[2006] SASC 371
Civil
GRAY J:
Introduction

This is an application to determine whether a person convicted of murder is entitled to enter an appearance to a citation to propound a will of the deceased.
Lynn Anne Luxton died from unnatural causes on 11 March 2003. At the time of death, she left real and personal estate to the value of approximately $1,470,000.00
Ms Luxton made a writing dated 25 October 2001 (“the 2001 writing”) and a will dated 8 April 1993 (“the 1993 Will”).
The 2001 writing provided:
I REVOKE all former Wills and Codicils made by me
I APPOINT THE PUBLIC TRUSTEE of Adelaide in the said State (hereinafter referred to as “my trustee”) to be sole executor and trustee of this my Will
…
I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate to STEPHEN EVANS provided he shall survive me for a period of twenty-eight (28) clear days.
IN THE EVENT of the said Stephen Evans failing to survive me for the aforesaid period I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate to my trustee upon trust to call in or sell and convert into money all such parts thereof as shall not consist of money with power to postpone such conversion for so long as my trustee shall think fit and pay thereout my funeral and testamentary expenses and debts and all the duties payable in respect of my estate without subsequent adjustment or apportionment of the said duties and stand possessed of the residue upon trust in equal shares for THE SALVATION ARMY (SOUTH AUSTRALIA DIVISON) PROPERTY TRUST … the ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (SOUTH AUSTRALIA) INCORPORATED … the AUSTRALIAN RED CROSS SOCIETY (SOUTH AUSTRALIA DIVISION) INCORPORATED … THE GUIDE DOGS ASSOCIATION OF SOUTH AUSTRALIA AND NORTHERN TERRITORY INCORPORATED … and the WOMEN’S CHILDREN’S HOSPITAL
NOTWITHSTANDING the foregoing trust for sale and conversion I SPECIFICALLY EMPOWER my trustee to appropriate any real estate in specie and/ or personal estate in specie forming portion of my estate at the time of my death in full satisfaction or part satisfaction of a legacy or a share of my residuary estate provided that such real estate and/ or personal estate has not been specifically devised and/ or bequeathed under the provisions of this my Will
I DECLARE that the respective receipt of the Secretary or of Treasurer or of any person duly authorized to receive money on behalf of any body whether incorporated or unincorporated benefiting under this my Will shall be a full and valid discharge to my trustee.
Under the terms of the 1993 will, Public Trustee was appointed sole executor and Angela Bell, Ms Luxton’s daughter, was named as the residuary devisee and legatee provided she survived the deceased and attained the age of 21 years; should Ms Bell predecease or fail to attain 21 years leaving a child or children then to such child or children; in the event of failure to so vest, then to Ms Luxton’s father and cousins. The 1993 will contained a regular attestation clause and appeared to have been formally executed.
Stephen Arthur Evans, the devisee and legatee under the 2001 writing, was charged with the murder of Ms Luxton. On 8 December 2003, Mr Evans was convicted by jury verdict of the murder of Ms Luxton. He was subsequently sentenced to life imprisonment. A Judge of this Court dismissed an application for leave to appeal. Mr Evans then sought leave to appeal from the Court of Criminal Appeal. On 26 May 2005, leave to appeal was refused by that Court.[1] Mr Evans has not sought special leave to appeal to the High Court.
[1] R v Evans [2005] SASC 184.
On 22 June 2006, Ms Bell cited Public Trustee, Mr Evans and the substituted residuary devisees and legatees all named in the 2001 writing to propound it. In default of any of the citees seeking to propound the 2001 writing, Ms Bell is seeking an order that probate of the 1993 will be granted to Public Trustee. Mr Evans has purported to appear to the citation. The other citees have not sought to appear.
The Registrar of Probate referred the matter to a Judge of this Court seeking a direction as to whether Mr Evans is precluded from entering an appearance to the citation by virtue of his conviction for the murder of the deceased.
The relevant terms of the citation addressed to Mr Evans are as follows:
Take notice that Angela Bell of … in the State of South Australia Student has stated in an affidavit sworn on the 31st day of May 2006 that:-
1.LYNN ANNE LUXTON late of ... in the said State Home Duties deceased (“the deceased”) was last seen alive on the 10th day of March 2003 and whose dead body was found 10 kms north of Whyalla in the said State on the 11th day of March 2003 having made and duly executed her last will and testament on the 8th day of April 1993 wherein she named Angela Bell residuary devisee and legatee.
2.The deceased left a paper writing dated the 25th day of October 2001 (now remaining in the Probate Registry of this Court) purporting to be a will whereby she appointed you the instituted residuary devisee and legatee in the event that you survived the deceased by 28 days.
You are cited to propound the paper writing dated the 25th day of October 2001 if you think it in your interest to do so. If you wish to comply with this citation, you must within 21 days after service on you of this citation, enter an appearance in the Probate Registry of this Court at 301 King William Street Adelaide either:
(1)stating that you intend to propound the paper writing dated the 25th day of October 2001;
or
(2)showing cause why probate of the will dated the 8th day of April 1993 should not be granted to Public Trustee
If you do not comply with this citation, the Court may grant probate of the will dated 8th April 1993 of the deceased to Public Trustee in your absence without further notice to you.
On 19 September 2006, submissions were made by counsel for Ms Bell and by Mr Evans with respect to whether Mr Evans could appear to the citation. I allowed Mr Evans further time to make further submissions in writing.
The Forfeiture Rule
Where a beneficiary under a will or a person eligible to take on an intestacy causes the death of the testator or the intestate in circumstances amounting to murder or manslaughter that person will not be in a position to claim under the will or upon intestacy. Public policy in these circumstances overrides the express provisions of a will and the statutory provisions relating to distribution on intestacy. This principle is referred to as the “forfeiture rule”.
The forfeiture rule was formulated in Cleaver & Ors v Mutual Reserve Fund Life Association.[2] Fry LJ observed:[3]
It appears to me that 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.
[2] Cleaver & Ors v Mutual Reserve Fund Life Association [1892] 1 QB 147.
[3] Cleaver & Ors v Mutual Reserve Fund Life Association [1892] 1 QB 147 at 156.
In Helton v Allen[4] Dixon, Evatt and McTiernan JJ adopted this statement and summarised the forfeiture rule as follows:[5]
[The forfeiture rule’s] clear formulation was left to Cleaver’s Case, ... It is placed upon a principle of public policy, and it was said that no system of jurisprudence could with reason include amongst the rights which it enforces rights directly resulting to a person asserting them from the crime of that person (per Fry L.J.). In In the Estate of Hall the doctrine was finally established and held to include not only murder but manslaughter. There Hamilton L.J. said that the principle could only be expressed in the wide form: “It is that a man shall not slay 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”.
[4] Helton v Allen (1940) 63 CLR 691.
[5] Helton v Allen (1940) 63 CLR 691 at 709 (footnotes omitted).
Dixon, Evatt and McTiernan JJ’s observations did not form part of the ratio of the case. Nonetheless their Honour’s adoption of the forfeiture rule has been subsequently applied in numerous authorities.
In Rasmanis v Jurewitsch & Anor,[6] Jacobs JA, with whom Wallace P and Mason JA concurred, stated the forfeiture principle as follows:[7]
I think that the primary rule to be enforced is that the felon must not be allowed to retain any benefit flowing to him from the slaying and that he is required to hold any such benefit which flows at law upon trust for someone other than himself.
In Troja v Troja,[8] Kirby P observed:[9]
By that rule, a person who feloniously kills another is ordinarily denied enjoyment of the property which would otherwise have been acquired as a result of that death.
In the same case Meagher JA described the forfeiture rule as:[10]
[W]here 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.
[6] Rasmanis v Jurewitsch & Anor [1970] 1 NSWR 650
[7] Rasmanis v Jurewitsch & Anor [1970] 1 NSWR 650 at 652.
[8] Troja v Troja (1994) 33 NSWLR 269
[9] Troja v Troja (1994) 33 NSWLR 269 at 271.
[10] Troja v Troja (1994) 33 NSWLR 269 at 299.
More recently, this Court in Rivers v Rivers[11] provided the following formulation of the forfeiture rule:[12]
The forfeiture rule prevents a person from exercising a right to property which could have been exercised if it had not been for the fact that the death of the owner of the property had been the result of the unlawful act of the claimant.
[11] Rivers v Rivers [2002] SASC 437.
[12] Rivers v Rivers [2002] SASC 437 at [32].
The forfeiture rule as formulated in Cleaver and adopted in Helton and later Australian authorities has nonetheless been criticised in a number of subsequent authorities as being “uncertain in scope, unsound in its conceptual basis, and unjust in some of its applications”.[13] Two schools of thought developed as to the application of the forfeiture rule. The first considered that there needed to be a flexible approach to the application of the forfeiture rule to take account of the varying circumstances in which the death of a testator may have been caused by the person claiming a benefit under the will, for example, mental illness.[14] Kirby P, as he then was, applied this line of reasoning in Troja:[15]
The ultimate test is 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. To the contrary, it is the inflexible application of the “forfeiture rule”, in its original English exposition, that will cause the offence to conscience from which a court of equity will provide relief.
[13] Troja v Troja 33 NSWLR 269 at 284 (Kirby P).
[14] Public Trustee v Fraser (1987) 9 NSWLR 433 (Kearney J); Public Trustee v Evans (1985) 2 NSWLR 188 (Young J); Re Keitley [1992] 1 VR 583 (Coldrey J); Public Trustee v Hayles (1993) 33 NSWLR 154 (Young J) and Troja v Troja (1994) NSWLR 269 (Kirby P.)
[15] Troja v Troja (1994) 33 NSWLR 269 at 284.
The second school of thought considered the application of the forfeiture rule as formulated in Cleaver, to be absolute and inflexible.[16] As Meagher JA observed in Troja:[17]
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.
…
The appellant has pointed to various other decisions … 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, as Powell J has pointed out in Kemperle’s case and in Bain v Morabito … 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.
[16] See Kemperle v Public Trustee (unreported, NSWSC, Powell J, 20 November 1985); Bain v Morabito (unreported, NSWSC, Powell J, 14 August 1992); Ekert v Mereider (1993) 32 NSWLR 729; Troja v Troja (1994) 33 NSWLR 269 (Mahoney and Meagher JJA).
[17] Troja v Troja (1994) 33 NSWLR 269 at 299 (Meagher JA).
The uncertainty of the scope of the forfeiture rule and whether there can be any exceptions to its application has been ameliorated in New South Wales by the enactment of the Forfeiture Act 1995 (NSW). That Act provides the court with the discretion to modify the effect of the forfeiture rule if justice demanded it.[18] However, the Act does not apply, and hence the forfeiture rule cannot be ameliorated, where the unlawful killing constitutes murder, regardless of whether the offender intended to cause the death of a testator for the purpose of obtaining benefit.[19] Similar legislation in South Australia does not exist.[20]
[18] The forfeiture rule was first modified in the UK by the Forfeiture Act 1982 (UK). The New South Wales Parliament responded to the suggestion in Troja v Troja that similar legislation be enacted. Earlier, the ACT passed similar legislation – Forfeiture Act 1991 (ACT).
[19] Forfeiture Act 1995 (NSW) section .4(2); Troja v Troja (1994) 33 NSWLR 269.
[20] In Rivers v Rivers, the Court held that the forfeiture rule was not subsumed by the Criminal Assets Confiscation Act 1996 (SA).
It is not necessary in the present case to determine whether, in the absence of legislation, this Court should exercise discretion in the application of the forfeiture rule. Judicial discussion surrounding the application of the forfeiture rule has only been raised in cases of mental impairment and in circumstances where there has been a criminal acquittal. There is much to commend the approach of Kirby P. However, a concluded view can await a more appropriate vehicle. It is therefore sufficient for the purposes of the present proceeding that the Full Court in Rivers unequivocally adopted the forfeiture rule as enunciated in Cleaver’s case and in Helton.
Criminal Proceedings
Mr Evans submitted that the forfeiture rule is not applicable as he is not guilty of the murder of Ms Luxton. He claims to be still pursuing the appeal process. Accordingly, it was Mr Evans’ submission that this Court should allow him to enter an appearance to the citation. Mr Evans accepted that if he is guilty of the murder, by application of the forfeiture rule he has no entitlement to enter an appearance.
As earlier observed, Mr Evans was convicted of Ms Luxton’s murder by jury verdict. He has exercised his right to seek leave to appeal from a single Judge of this Court. This application was dismissed. Mr Evans then exercised his further right to apply for leave to appeal before the Court of Criminal Appeal. As earlier observed, this application was also dismissed. Mr Evans has no right of appeal to the High Court. He may however, apply for special leave to appeal. No application for leave has been made and is now presently 16 months out of time.
These proceedings are not an occasion to re-examine the guilt of Mr Evans. This has been determined by jury verdict. There should not be a further delay to the administration of Ms Luxton’s estate by the possibility of Mr Evans filing an application for an extension of time to seek special leave from the High Court. Mr Evans’ conviction of murder is an established fact. On this basis, by application of the forfeiture rule, Mr Evans has no claim whatsoever to the estate of Ms Luxton.
Citation to Propound a Will
Having determined that Mr Evans, by application of the forfeiture rule, has no claim whatsoever to the estate of the deceased, it remains to resolve whether Mr Evans is also precluded from appearing to the citation.
Rule 55 of the Probate Rules 2004 (SA) provides:
55.01A citation to propound a will must be directed to the executors named in the will and to all persons interested thereunder, and may be issued at the instance of any citor having an interest contrary to that of the executors or such other persons.
55.02 If the time limited for appearance has expired, the citor may -
(a)in the case where no person has entered an appearance apply to the Registrar by summons in the Form No.33 supported by an affidavit of service search and non-appearance for an order for a grant as if the will were invalid;
(b)in the case where no person who has entered an appearance, proceeds with reasonable diligence to propound the will, apply to the Registrar by summons (which must be served on every person cited who has entered an appearance) for such an order as is mentioned in paragraph (a) of this Rule.
Pursuant to Rule 55.01 a person who is an executor or who has an interest under a will can enter an appearance to the citation to propound it. It follows that a person who has no interest under the will has no entitlement to enter an appearance. By application of the forfeiture rule, Mr Evans has no interest under the 2001 writing. As a result, Mr Evans has no entitlement to enter an appearance to the citation to propound the 2001 writing.
Conclusion
The Public Trustee, as executor named in the 2001 writing, nor any of the other named beneficiaries, have appeared to the citation. Accordingly, Ms Bell as citor, is entitled pursuant to Rule 55.02, to proceed to apply for an order of grant of probate of the 1993 will as if the 2001 writing were invalid.