Nay v Iskov - [2012] NSWSC 598

Supreme Court

New South Wales

Medium Neutral Citation: Nay v Iskov [2012] NSWSC 598
Hearing dates: Wednesday 2 May 2012
Decision date: 02 May 2012
Jurisdiction: Equity Division - Duty List
Before: Brereton J
Decision:
Declarations concerning construction of the will and imposing certain trusts on the defendant

Catchwords: Wills, Probate and Administration - Forfeiture under public policy rule -
Application - Person killing beneficiary under will - Rule applicable
Legislation Cited: (NSW) Conveyancing Act 1919, s 66G
(NSW) Forfeiture Act 1995
Cases Cited: Troja v Troja (1994) 33 NSWLR 269
Public Trustee v Evans (1985) 2 NSWLR 188
Public Trustee v Fraser (1987) 9 NSWLR 433
Rasmanis v Jurewitsch (1970) 70 SR (NSW) 407
Category: Principal judgment
Parties: Pamela Nay (First Plaintiff)
Tania Maree Wilkinson (Second Plaintiff)
Clayton John Iskov (Defendant)
Representation: Mr M Gunning (Plaintiffs)
Jon Watts, Avern McIntyre & Co (Plaintiffs)

File Number(s): 11/ 245160

Judgment (ex tempore)

HIS HONOUR: The deceased Kylie Petrina Iskov and the defendant Clayton John Iskov were married in 1997 and together had three children, Hollie, Tia and Dane Iskov. On 13 April 2005, the deceased made a will by which she appointed the plaintiffs Pamela Nay and Tania Mary Wilkinson (her mother and sister, respectively) to be her executors and trustees. By clause 3, she gave certain real property to her trustees upon trust for the three children.

Clause 5 provided as follows:

I give and bequeath to my husband Clayton John Iskov the sum of three hundred and fifty thousand dollars ($350,000.00) which is to be paid from the proceeds of my AMP Flexible Lifetime Super Plan Policy Member 701569XXX should it be in existence at the date of my death and the balance of the proceeds of this Policy I give and bequeath to my Trustees to be held upon trust for such of them my children Hollie Iskov Tia Iskov and Dane Iskov as shall survive me and if more than one in equal shares as tenants in common and this shall also include any other child or children of mine living at the date of my death with such proceeds to be paid to my beneficiaries upon my eldest surviving child attaining the age of thirty years (30) years [sic] provided that should my AMP Flexible Lifetime Super Plan Policy Member 701569XXX no longer be in existence at the time of my death then this bequest shall be of no effect.

Clause 6 provided as follows:

I give and bequeath the proceeds of my AMP Superannuation Policy or any other Superannuation Policy I may have at the date of my death to my trustees to be held upon trust for such of them my children Hollie Iskov Tia Iskov and Dane Iskov as shall survive me and if more than one in equal shares as tenants in common and this shall also include any other child or children of mine living at the date of my death with such proceeds to be paid to my beneficiaries upon…

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 Nay v Iskov

Details

AGLC: Nay v Iskov [2012] NSWSC 598
Case: [2012] NSWSC 598
Decision Date: 02 May 2012

CaseChat Overview and Summary

Nay v Iskov involved a dispute concerning the validity of a will and the applicability of the public policy rule of forfeiture in relation to a beneficiary who had killed the testator. The court was tasked with determining whether the beneficiary's involvement in the testator's death warranted the forfeiture of their inheritance under the will. The case was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the public policy rule of forfeiture should be applied in cases where a beneficiary had caused the death of the testator. This rule traditionally prevents a person from benefiting from their own wrongdoing, such as where they have committed a crime against the deceased. The court had to decide if the rule applied in cases of homicide by a beneficiary and if so, the extent of its application.

The court found that the public policy rule of forfeiture did indeed apply in this context. It held that allowing a beneficiary who had killed the testator to inherit from the estate would contravene public policy and undermine the fundamental principles of justice and morality. The court emphasised that the rule serves to prevent individuals from profiting from their own unlawful acts, particularly where those acts have resulted in the death of the testator. As a result, the beneficiary's entitlement to the inheritance was forfeited. The court's decision was grounded in the principle that the law should not permit a person to benefit from their own criminal conduct, especially in cases of homicide.

The final orders of the court were that the beneficiary's interest in the estate was forfeited, and the estate would be distributed in accordance with the terms of the will as if the beneficiary had predeceased the testator.

Orders