Re Tucker; Nunan v Aylward
[2019] VSC 210
•2 April 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S CI 2017 01385
IN THE MATTER of r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015
-and-
IN THE MATTER of the intestate estate of GREGORY JOHN TUCKER (deceased)
| LYNNE MAREE NUNAN (representing the intestate estate of GREGORY JOHN TUCKER) | Plaintiff |
| v | |
| GAVIN AYLWARD (representing the intestate estate of KORINNE AYLWARD) | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 December 2018 |
DATE OF JUDGMENT: | 2 April 2019 |
CASE MAY BE CITED AS: | Re Tucker; Nunan v Aylward |
MEDIUM NEUTRAL CITATION: | [2019] VSC 210 |
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SUCCESSION LAW — Application for declaration of order of death — Where deceased and domestic partner murdered — Where deceased and domestic partner died intestate — Where parties agree as to order of death — Where experts not called at trial — Where Court appointed contradictor to protect the interests of minor children — Re Plaister; Perpetual Trustee Co v Crawshaw (1934) 34 SR (NSW) 547 — Edwards v State Trustees Ltd (2016) 54 VR 1 — Property Law Act 1958, s 184.
WILLS AND ESTATES — Where parties seek approval of compromise — Where no grant of representation in either estates of deceased or domestic partner — No application for further provision on foot — No application for approval filed — Jurisdiction of Court to approve the compromise in such circumstances — Administration and Probate Act 1958, s 91 — Supreme Court (General Civil Procedure) Rules 2015, Order 15.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J Verspaandonk | P&B Law |
| For the Defendant | Mr S McNab | T J Mulvany & Co |
| For the Contradictor | Mr J L Smith |
HER HONOUR:
Introduction
Gregory John Tucker (‘the deceased’) and his domestic partner, Korinne Aylward (‘Ms Aylward’), were murdered on 8 December 2013. The deceased was survived by his three adult children: Megan Louise Jones, Brenton John Tucker and Kaitlyn Maree Tucker from his previous marriage with the plaintiff; and three minor children: Callum Joseph Tucker, Ryan James Tucker and Grace Elizabeth Tucker from his relationship with Ms Aylward. The defendant is the maternal grandfather of the minor children.
The deceased and Ms Aylward both died intestate. On 28 August 2014, letters of administration ad colligendum bona were granted to the plaintiff in the estate of the deceased. The grant was limited for the purposes of vesting the deceased’s shareholdings and units in a unit trust, dealing with a specified real property and any registered mortgage, calling in the assets of the deceased, insuring his assets, paying his debts, and preserving the estate pending a general grant of administration being made by the Court.
Before the order of the death of the deceased and Ms Aylward is determined, the deceased’s estate is valued at approximately $3.4 million and the estate of Ms Aylward is valued at approximately $120,000. In addition, Recital H of the terms of settlement produced at trial refers to an additional sum of $789,890 payable to the minor children, comprising superannuation entitlements and an ex gratia payment from the State Government of Victoria. It is assumed these funds do not form part of Ms Aylward’s estate.
No general grant of administration on intestacy has been made in either estate. Given the significant disparity in quantum between the estates, the order of the deaths of the deceased and Ms Aylward has implications for the distribution of their estates and the consequent quantum to each of the children from the deceased’s relationships pursuant to the intestacy provisions applicable at the date of their deaths.[1]
[1]Administration and Probate Act 1958 (Vic) ss 51–52, as at 8 December 2013.
Plaintiff’s application
By originating motion filed 13 April 2017, the plaintiff seeks, inter alia, a declaration that the deceased survived Ms Aylward and orders pursuant to r 16.03 of the Supreme Court (General Civil Procedure) Rules 2015 that she be appointed to represent the deceased’s estate in the proceeding and that a suitable person be appointed as defendant to represent the intestate estate of Ms Aylward.
On 4 May 2017, the plaintiff provided a form of consent orders to the Court, naming Gavin Aylward as defendant. By order of the Court made 5 May 2017, the plaintiff was granted leave to amend the originating motion in accordance with Form 5C and to bring the proceeding against Gavin Aylward as the defendant. The amended originating motion and a summons was subsequently filed on 22 May 2017.
Plaintiff’s expert evidence
In addition to the affidavits sworn by the plaintiff on 6 April 2017 and 27 November 2018, the plaintiff relies on the affidavit of Dr Richard Byron Collins sworn 4 April 2017. Dr Collins exhibits his report dated 9 September 2016 in support of the declaration that the deceased survived Ms Aylward. Dr Collins deposes that he read and agreed to be bound by the contents of Form 44A Expert Witness Code of Conduct.[2]
[2]See Supreme Court (General Civil Procedure) Rules 2015 (Vic) Form 44A .
In preparation of his report, Dr Collins reviewed a range of documents, namely: the autopsy report of the deceased; the post-mortem examination report of Ms Aylward; the transcript of coronial finding/determination of the deceased and Ms Aylward; a statement prepared by a forensic scientist; a medical report prepared by a forensic physician; the transcript of sentence by Jane Dixon J dated 10 December 2015; the transcripts of evidence given by Drs Baber and Sungalia on 5 November 2014; a statement prepared by a police officer; the residuum of Inquest Brief prepared by the homicide squad; and booklets colour photographs. Dr Collins also met with Dr Baber at the Victorian Institute of Forensic Medicine to discuss the autopsy reports, and was shown additional photographs and post-mortem findings. In addition, Dr Collins met with counsel and instructing solicitors to clarify various issues.
In summary, Dr Collins accepts the sequence of assaults on the deceased and Ms Aylward as contained in the transcript of sentence, and is in ‘general agreement’ with the autopsy report of Dr Baber that the causes of deaths was stabbing to the chest and abdomen. Dr Collins notes that in each case ‘the particular wound which each deceased sustained involving their heart would have been fatal of its own accord’. Neither the deceased nor Ms Aylward had any pre-existing natural diseases that would have played any role in their deaths once the injuries were inflicted upon them. Dr Collins stated that ‘[i]t is important to understand’ that while the wounds to the heart were similar, ‘the damage to Ms Aylward’s heart was of a greater severity/extent … which would result in valvular incompetence’.
Dr Collins also stated he was in ‘general agreement’ with the report of the forensic scientist that the deceased may have stood over Ms Aylward while she was injured on the floor, that she moved very little while in this location where she was subsequently found, and that the deceased stood stationary on the rear patio for a period of time while injured. Dr Collins opined that:
a fatal stab injury involving the heart would, in all likelihood, result in death within approximately 10 minutes and, during the initial period of blood loss, considerable physical activity could be performed by such an individual, prior to lapsing into unconsciousness…
The report of Dr Collins concludes: ‘it is my firm opinion that it is probable Korinne Aylward died before Gregory Tucker’.
Defendant’s expert evidence
The defendant relied upon an affidavit of Dr Johan Duflou sworn 15 June 2017, which exhibits his report dated 19 January 2017 in opposition to the declaration sought by the plaintiff. Dr Duflou read and agreed to be bound by ‘Practice Note No. 2 (Expert evidence in criminal trials)’. Neither Dr Duflou’s affidavit nor report indicates whether he read and agreed to be bound by the contents of Form 44A Expert Witness Code of Conduct, which applies to civil trials.[3] Dr Duflou reviewed a similar range of documents in preparation of his report, including the autopsy reports and forensic medical report, as well as the judgment of DPP v Kunduraci,[4] statements of paramedics, and the report of Dr Collins dated 9 September 2016.
[3]See Supreme Court (General Civil Procedure) Rules 2015 (Vic) Form 44A.
[4][2015] VSC 707.
In summary, Dr Duflou outlines his understanding that the deceased and Ms Aylward died as a result of multiple stab wounds and that Mustafa Kunduraci has been sentenced for their murders. Dr Duflou summarised the information in the documents he reviewed under the headings ‘Relevant circumstances’, ‘Ambulance information’, ‘Scene findings’, ‘Post mortem examination on Mr Tucker’, ‘Post mortem examination on Ms Aylward’ and ‘Opinions of Dr Collins’.
Dr Duflou agrees with Drs Baber and Collins ‘that the cause of death in both cases is stab wounds to the chest and abdomen with the stab wounds to the heart being capable of causing death on their own.’ Dr Duflou opines that there are ‘effectively three possibilities’ in relation to the order in which the deceased and Ms Aylward were stabbed, being: that all of the deceased’s wounds were inflicted and then all of Ms Aylward’s wounds were inflicted; conversely, that all of the Ms Aylward’s wounds were inflicted and then all of the deceased’s wounds were inflicted; or that the infliction of wounds on one person was interrupted by the infliction of wounds on the other person and such interruptions may have occurred on more than one occasion.
Dr Duflou notes that in her Honour’s sentencing remarks, Jane Dixon J stated that it was likely Ms Aylward suffered her wounds first and then the deceased suffered his wounds, but also notes the he is aware of her Honour’s reason for that conclusion. Dr Duflou notes that ‘Dr Collins, at least in part, appears to base his conclusions on this premise.’
Dr Duflou agrees with Dr Collins that it appears Ms Aylward sustained her injuries and died in the location she was found, without moving about the home, and that it is clear the deceased did move about the home after sustaining at least one stab wound, including to the location of Ms Aylward. Dr Duflou opines it is ‘therefore reasonably possible … that Ms Aylward was stabbed first and she died where she collapsed all within a very short time period, and that Mr Tucker was stabbed, moved around and then died.’ He further opines:
However, this reconstruction largely pre-supposes that Ms Aylward died rapidly after sustaining her stab wounds, that all the stab wounds were sustained in a very short period of time, that Mr Tucker came across the body of Ms Aylward (alive or dead at the time) and he was subsequently stabbed to death during a struggle.
Dr Duflou expresses the opinion that he was provided with no evidence ‘to show that one of the deceased must have sustained all their wounds prior to the other person sustaining all their wounds’. Dr Duflou agrees with the opinion of Dr Collins that stab wounds to the heart have the real potential to cause death as a result of blood loss and cardiac arrhythmia, and is of a like opinion that people can perform considerable physical activity after sustaining stab wounds to the heart. Dr Duflou, after reviewing some recent literature on the topic, also expressed the opinion that ‘persons with stab wounds to the heart survive a variable length of time’. Dr Duflou notes there was more blood accumulated in the body cavities of Ms Aylward than the deceased, and this suggests Ms Aylward was ‘alive for a period of time despite having sustained injury to vital internal organs.’
The expert opinion of Dr Duflou concludes:
Contrary to the opinions expressed by Dr Collins, I am of the view that it cannot be stated with any degree of certainty who died first in this case, given the lack of certainty in what order the stabbings were sustained, the order in which the various organs of the body were injured, and how each person was affected by the injuries. Even assuming all the wounds were first sustained by Ms Aylward and then Mr Tucker sustained all his injuries, it remains entirely possible for Ms Aylward to have died after Mr Tucker.
The foreshadowed ‘global’ settlement
At a directions hearing on 10 August 2018, counsel for the plaintiff informed the Court that following judicial mediation on 23 July 2018 the parties had entered into terms of settlement, subject to the Court’s approval as it affected the rights of the minor children. The settlement was described as a ‘global’ settlement, that ‘settles all rights of the children to a share in the estate, whether by virtue of an intestacy, depending on the order of death … or by virtue of what other rights they may have had under Part IV’. The parties confirmed that no applications pursuant to Part IV of the Administration and Probate Act 1958 had been issued by the adult children or on behalf of the minor children. The terms also included a release by the minor beneficiaries of their Part IV rights as a condition of receiving the benefits under the terms of settlement.
The Court informed the parties that the order of death needed to be determined first and that evidence or submissions in support of the parties’ respective positions would need to be made to the Court, that a Part IV application would need to be issued and, depending on the claims, it may be possible for the claimants to issue one proceeding as a cost-effective way of finalising the remaining issues. The Court indicated it was mindful of the tragic circumstances for the family and would accommodate an alternative course provided it had a proper basis and complied with usual procedure. Counsel for the defendant submitted that the compromise could be approved under Order 15 of the Supreme Court (General Civil Procedure) Rules 2015. The Court required the parties, particularly the defendant, to provide evidence for the purposes of determining the order of death and the strength of any proposed Part IV claims.
Appointment of contradictor
Given the position taken by the parties, the Court determined to appoint a contradictor to represent the interests of the minor children and provide a confidential advice to the Court. Counsel for the plaintiff and the defendant agreed to the appointment of the contradictor. On 11 October 2018, orders were made, inter alia, appointing counsel as contradictor. The orders made that day recorded, inter alia, that the order of death remained an issue to be determined by the Court and that the proposal of the parties to approve the conditional settlement and potential Part IV claims may cause difficulties as a grant of representation had not yet been made. Ordinarily, an application pursuant to Part IV would be issued after a grant of representation in the relevant estate.
Written submissions
On 29 October 2018, the Court made orders for the provision of written submissions by the plaintiff, defendant and contradictor, confined to the issue of the order of death of the deceased and Ms Aylward, and set the proceeding down for trial on this issue.
Prior to trial, the plaintiff, defendant and contradictor provided written submissions on 20 November 2018, 29 November 2018, and 10 December 2018 respectively. The contradictor also provided a confidential memorandum of advice, as it had ‘become apparent in recent days that a confidential memorandum was required.’ In summary, the submissions of the parties addressed the issue of the order of death by noting the conflicting opinions filed by the experts, Dr Collins and Dr Duflou, the sentencing remarks of Jane Dixon J in DPP v Kunduraci, and addressed the applicable law in Victoria.[5] Both the plaintiff and the defendant submitted that they did not intend to call their respective experts and did not intend to cross-examine the other party’s expert.
[5]Citing Re Kumar [2017] VSC 81; Re Plaister; Perpetual Trustee Co v Crawshaw (1934) 34 SR (NSW) 547 (‘Re Plaister’). The defendant also cited Re Brush; Re Baird; Le Grand v Brush [1962] VR 596 (‘Re Brush’); Re Zapullo [1966] VR 390; Re Albert [1967] VR 875; Re Carri-Ann Rowlings; Fraser v Thom [2010] VSC 626 (‘Re Rowlings’).
The submissions of the parties, and those of the contradictor, also addressed the terms of settlement. However, the terms had not at that time been provided to the Court.
Plaintiff’s written submissions
The plaintiff submitted that, given the young ages and needs of the minor children, further proceedings pursuant to Part IV of the Administration and Probate Act 1958 would be inevitable in the event the Court determined that Ms Aylward died first. The plaintiff submitted the reasons for not adducing further evidence or cross-examining the defendant’s expert, Dr Duflou, included the cost and distress of attempting to determine the sequence of injuries in a trial, the uncertainty in establishing survival times even assuming a determined sequence of injuries, the parties’ obligations pursuant to the Civil Procedure Act 2010, and the prospect of the Part IV claims. The plaintiff indicated that this course of action was taken with the consent of the adult children.
On the basis of the proposal not to lead further evidence or cross-examine Dr Duflou, and the reasons for this proposal, the plaintiff submitted she would accept the presumption contained in s 184 of the Property Law Act 1958 had been engaged, and the appropriate determination would be that the deceased died first.
Defendant’s written submissions
The defendant submitted that ‘there is not enough forensic evidence to establish to the civil standard of care the order of deaths of [the deceased] and [Ms Aylward] and that the appropriate order should be that the presumption in section 184 of the Property Law Act is enlivened’. The defendant agreed that the funds for the minor children pursuant to the provisional terms of settlement should be paid into Funds in Court to be held for their benefit until they reach 18 years of age, should those terms be approved by the Court.
Contradictor’s written submissions
The contradictor’s submissions proceeded on the basis that the affidavits of the plaintiff, Dr Collins and Dr Duflou would be tendered without objection at trial. The contradictor also had the benefit of being in possession of both the written submissions of the parties and the terms of settlement.
In respect of the issue listed to be determined by the Court, the contradictor submitted that, given the conflicting opinions of Dr Collins and Dr Duflou and the uncertainty as to the order of deaths, there is ample evidence for the declaration which is now sought by the parties pursuant to s 184 of the Property Law Act 1958, that the deceased died first.
The contradictor also addressed whether the terms of settlement should be approved by the Court. While raising a number of ‘technical’ issues with the settlement and its approval by the Court, the contradictor submitted that the compromise is in the best interests of the minor children, particularly considering the undesirability of revisiting the circumstances of the murders in some detail. The reasons for the contradictor’s conclusion are contained in a confidential memorandum to the Court.
The technical issues raised by the contradictor largely echo those previously raised at the directions hearing on 10 August 2018. The contradictor also raised the issue that the terms of settlement were not in evidence and, if tendered, the plaintiff should warrant the financial circumstances of the adult children are as set out in the recitals to the terms. The contradictor also noted that the terms do not address the costs of the defendant and that these would ordinarily be expected to be paid from the estate of the deceased.
Application at trial
At trial on 11 December 2018, counsel for the plaintiff tendered the terms of settlement dated 23 July 2018 and handed up two proposed forms of order. The first form of order provided for an additional power to be added to the limited grant to the plaintiff made on 28 August 2014 for the purpose of compromising this proceeding on the terms contained in the terms of settlement. For the reasons set out at [35], this order was inappropriate in the circumstances of this proceeding.
The second form of orders sought the declaration as to the order of death but also sought additional orders approving the compromise as follows:
1. Declare that pursuant to section 184 of the Property Law Act 1958, the deceased Gregory John Tucker, born 21 March 1959, predeceased Korinne Aylward, born 17 August 1978, the circumstances of their respective deaths rendering it uncertain which of them survived the other.
2. The compromise contained in Terms of Settlement dated 23 July 2018 is approved and upon the plaintiff obtaining a grant of Letters of Administration of the deceased’s estate she shall be at liberty to distribute the estate of the deceased Gregory John Tucker in accordance with its terms.
3. The costs of the Court appointed contradictor be deemed an administration expense and paid by the plaintiff pursuant to paragraph 2(c)(i) of the Terms of Settlement. Otherwise there be no order as to costs.
Counsel for the plaintiff provided an overview of the terms and indicated that the actual quantum of further costs was less than allowed in the terms and that some of the costs had already been paid from the estate. The Court requested that details of these costs be provided to the Court after the trial as clarification and counsel for the plaintiff agreed to provide a short summary. Counsel for the plaintiff also submitted that the defendant’s costs were to come out of the share the minor children could have expected to receive from the estate.
The Court noted again that the only application before it was the order of death of the deceased and Ms Aylward, and reiterated the issues raised with the parties at the directions hearing some four months ago on 10 August 2018 still needed to be addressed by the parties, namely:
(a) The letters of administration ad colligendum bona granted to the plaintiff did not confer on her the power to enter into a compromise on behalf of the estate of the deceased. Despite this, it appeared the compromise had been entered into under the rubric of this limited grant.
(b) No general grant of representation had yet been made in the estate of the deceased or Ms Aylward.
(c) The application before the Court was for a declaration that Ms Aylward died first. However, the terms of settlement proceeded on the basis that the deceased died first. The order of death was a determination to be made by the Court on the basis of evidence and the jurisdiction of the Court could not be ousted by the agreement of the parties.
(d) No evidence had been led by either party, but particularly the defendant, as to the strengths of the respective claims of the adult and minor children. The filing of affidavits would be the most appropriate way to substantiate the case for further provision.
In the course of discussion on these issues, it was apparent that the legal representatives of both the plaintiff and the defendant had failed to turn their minds to the legal and procedural issues first raised by the Court on 10 August 2018 and they did not have a proposal for the approval of compromise. It also became apparent that there were other procedural irregularities and evidential gaps that needed to be addressed by the parties as follows:
(a) The defendant is ‘only representing the estate under the rules in this particular application’ and not the minor children.
(b) Counsel for the defendant informed the Court at trial that an order of the Family Court of Australia had been made appointing a maternal aunt of the minor children as the children’s guardian. No evidence of the appointment was before the Court. Counsel for the defendant then handed to the Court an unsigned, unauthenticated copy of the order and was informed that this was not evidence of the order.
(c) As no general grant of representation had been made in either estate, there was no person with authority to hold the proceeds of the estate on trust for the minor children prior to distribution or payment into Funds in Court.
(d) No summons for approval pursuant to Order 15 of the Rules had been filed with the Court.
(e) The terms were conditional on being approved by the Court under Order 54 of the Rules, however, no such application had been issued.
Applicable principles
Pursuant to s 36 of the Supreme Court Act 1986 and r 23.05 of the Supreme Court (General Civil Procedure) Rules 2015, the Court may make binding declarations of right, whether or not any consequential relief is claimed. The power to grant declaratory relief is very wide. However, it is a discretionary power to be exercised with extreme care and caution as it declares the legal position of the parties before the Court.[6] Declaratory relief ordinarily requires a Court to be satisfied of the declared issue by evidence, not merely by the consent of the parties.[7]
[6]Minogue v Dougherty [2017] VSC 724, [51] (John Dixon J); Rich v Groningen (1997) 95 A Crim R 272, 278–279 (Gillard J).
[7]Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, 357.
Where simultaneous deaths occur, it is necessary for the order of death to be determined so that applications may be made for a grant of representation in the respective estates so that the estates can be administered. The statutory presumption in relation to the order of death only applies where the Court determines the answer to the preliminary question as to the order of death is uncertain.[8]
[8]Re Comfort; Re Tinkler; Equity Trustees Executors & Agency Co Ltd v Cameron [1947] VLR 237 (‘Re Comfort’); Re Brush (n 5); Re Zapullo (n 5).
Section 184 of the Property Law Act 1958 provides:
Presumption of survivorship in regard to claims to property
In all cases where, after the second day of December One thousand nine hundred and twenty-five, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the Court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.
In New South Wales, the analogous provision is s 35 of the Conveyancing Act 1919 (NSW). This provision was considered in Re Plaister, which concerned a man who killed his wife and daughter before then committing suicide.[9] The issue was the order of death. Regarding the statutory provision, Harvey CJ stated:
In my opinion I ought not to hold that “uncertain” means that it has not been demonstratively proved, not proved with scientific accuracy. I think that s. 35 of the Conveyancing Act really was meant to fill up a gap which existed previously in the law, where the Court was unable by a balance of testimony satisfactory to itself to come to a conclusion as to the order of the deaths.[10]
[9]Re Plaister (n 5).
[10]Ibid 551 (Harvey CJ in Eq).
His Honour went on to refer to circumstances, such as foreign massacres and shipwrecks, where there was no evidence before the Court as to the order of deaths, before determining that the statutory provision was ‘not to take away from the Court the power which it had previously of deciding that fact, if it could decide it, by evidence’.[11] This approach has been followed in Victoria,[12] where it is accepted that s 184 does not absolve the Court of the task of weighing up the evidence regarding the order of death.[13]
[11]Ibid 552.
[12]Re Comfort (n 8) 240 (Herring CJ).
[13]Ibid. See also Re Rowlings (n 5) [10] (Macaulay J).
In Edwards v State Trustees Ltd, Santamaria JA considered the use of evidence of homicide in civil proceedings.[14] Section 92(2) of the Evidence Act 2008 provides that evidence of a conviction may be adduced not only to prove the fact of a conviction, but also to prove the elements of the offence for which the person was convicted. Evidence of the conviction may be given by certificate: s 178(2). However, his Honour noted that, in a variety of cases, sentence reasons have been put in evidence, although there is doubt as to the admissibility of such findings in sentence reasons where they concern matters beyond the essential elements of the crime. [15]
[14](2016) 54 VR 1, 31–32 [109]–[117].
[15]Ibid 31 [110], 32 [114]–[115].
Consideration
Order of death
It is undisputed that the deceased and Ms Aylward were murdered in their home by Mustafa Kunduraci, who pleaded guilty to two counts of murder.[16] No findings were made at his trial as to the order of their deaths.
[16]DPP v Kunduraci (n 4).
Where the matter to be proved in a civil proceeding is a crime, although the civil standard of the balance of probabilities applies, the gravity of the issues at hand must be kept in mind.[17]
[17]Helton v Allen (1940) 63 CLR 691, 712 (Dixon, Evatt and McTiernan JJ); Re Kumar (n 5) [57] (McMillan J).
In his report, Dr Collins concluded that it is probable Ms Aylward died first. This conclusion relies to some extent upon his assumption that the stabbings occurred in a particular order, although there is an absence of evidence to ground that assumption. Objectively, none of the three possible stabbing sequences suggested by Dr Duflou can be ruled out.
Dr Collins does point to some forensic evidence to support that, at some point during the sequence of events, the deceased was standing whilst Ms Aylward was on the ground. This may suggest that Ms Aylward might have been stabbed before the deceased or that if he had been stabbed at that point his wounds might have been less severe than those of Ms Aylward.
As summarised by the contradictor, the most significant aspects in which Dr Duflou diverges from Dr Collins are as follows:
(a) Dr Duflou states that it cannot be said with certainty for how long a person with a stab wound to the heart might survive. Dr Duflou refers to cases where stabbing victims survived for extended periods after being stabbed in the heart.
(b) While Dr Collins viewed the injuries to the heart of Ms Aylward as more severe and Dr Duflou does not appear to disagree, Dr Duflou noted that the accumulation of more blood in the body cavities of Ms Aylward than of the deceased might suggest that she was alive after the stabbing for some time, although he describes this as a ‘soft’ indication.
The contradictor suggested that perhaps further clarity in relation to these areas of disagreement might be provided by the experts giving oral evidence, although it is difficult to see how such evidence would lead to a conclusion other than that the order of deaths is uncertain. The Court accepts the contradictor’s analysis and is satisfied on the evidence that the order of the deaths of the deceased and Ms Aylward is uncertain and the declaration can be made by the Court.
Consequences of order of death on distribution of the deceased’s estate
At the time of their death, the applicable legislation governing the distribution of intestate estates was authorised version no 113 of the Administration and Probate Act 1958.
The implications of each alternative are illustrated in the plaintiff's first affidavit on the assumption that the deceased’s estate has a value of $3.3 million:
(a) if the deceased died first, the distribution of his estate would be approximately:
(i) $1.05 million to the older children;
(ii) $2.25 million to the minor children.
(b) if Ms Aylward died first, the division of funds would be approximately:
(i) $1.65 million to the older children;
(ii) $1.65 million to the minor children.
The ‘global’ settlement
The terms of settlement provided to the Court at trial are dated 23 July 2018 and are subject to and conditional on Court approval, pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015, and provide:
(a) the plaintiff shall consent to a declaration that the deceased predeceased [Ms Aylward] and there be no orders as to costs;
(b) the defendant and the plaintiff agree that the plaintiff shall get in and administer the estate of the deceased and obtain a full grant of letters of administration of the estate of the deceased to the plaintiff;
(c) the estate of the deceased shall be distributed after payment of certain debts, liabilities and reasonable costs and expenses as follows:
(iii) the sum of $1.3 million, inclusive of $85,000 for the plaintiff’s costs, be paid to the three older children in equal shares, meaning the sum of $1.215 to the older children;
(iv) as to the balance, meaning $2,000,000, for the benefit of the minor children to be paid to the Senior Master, Funds in Court and payable upon their attaining the age of 21 years, save for the defendant’s reasonable costs and disbursements of and incidental to the proceeding;
(d) full releases including in relation to any Part IV claims.
The terms state that the payment to the older children is in relation to their entitlements on intestacy and in relation to their foreshadowed claims pursuant to Part IV of the Administration and Probate Act 1958. They also state that the terms stand as notice that the younger children do not intend to make any further claims against the estate of the deceased.
The plaintiff’s position was that the terms involved a concession on the order of death and should also be approved by the Court. The plaintiff submitted that in order to maximise the benefit and security of the funds of the minor children, the funds be placed in the custody of the Office of the Senior Master, Funds in Court, which could then administer them as is thought best in the discretion of the Senior Master.
Putting aside the technical and procedural issues with the global settlement, the issue is whether it is in the best interests of the minor children. This involves a consideration of the implications of the determination of the order of death and the merits of the Part IV rights of the parties. In his confidential memorandum, the contradictor provided reasons in submitting that it is in the best interests of the minor children to enter into the compromise. Those reasons include the fact that a trial would be highly undesirable because it would involve revisiting the circumstances of the murders in some detail, which would be highly distressing for the families of the victims. As well as the necessity for the two medical experts to be called, it would also be necessary to call Dr Baber who conducted the autopsy and at least one other pathologist and possibly police investigators.
Turning to the technical and procedural issues, the older children and the younger children are eligible persons for the purposes of Part IV of the Administration and Probate Act 1958. The terms address Part IV rights and also provide for releases given by the parties that extend to Part IV rights. For that reason, it seems that both the younger children and the older children have foreshadowed such claims. The group that would make a claim will be determined after the issue of the order of death is determined. The terms then proceed on the basis that the deceased died first, with the plaintiff consenting to that declaration in the terms. The financial circumstances of the older children are set out in the terms, however there is no evidence of their financial circumstances or as to any matter relevant to any Part IV claims. In any event, no claims can be issued until a grant of representation has been made in either estate.
The parties sought to rely on the Court’s jurisdiction, pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015, for the approval of the global settlement on the basis that the rule permits the Court to determine any question arising in the administration of the estate or the execution of a trust. As the global settlement affects the interests of minors, it must be approved by the Court, pursuant to Order 15 of the Rules, with appropriate evidence and by persons with the appropriate authority to make such an application.
The plaintiff has limited powers under the grant made on 28 August 2014 and those powers do not authorise a compromise of claims on behalf of the estate of the deceased. Once the determination of the order of death is made, full grants of representation will be able to be made in each estate.
Finally, clause 2(c)(ii) of the terms of settlement provide for the costs of the plaintiff to be paid from their settlement. However, the costs of the defendant are not specifically mentioned and it is inferred from clause 2(c)(iii) that their costs are to be paid from the amount that will be paid to the Senior Master, Funds in Court. In light of the circumstances, the usual course would be that those costs would be paid from the estate of the deceased.
Conclusions
As the Court is satisfied that the circumstances of the death of the deceased and Ms Aylward is uncertain, the Court will make the following declaration:
The Court declares that, on the evidence, Gregory John Tucker and Korinne Aylward died on 8 December 2013 in circumstances rendering uncertain which of them survived the other and that Korinne Aylward being the younger is, by virtue of s 184 of the Property Law Act 1958, deemed to have survived Gregory John Tucker.
What is now required is for full grants of representation to be made in both estates. On the grants being made, those beneficiaries who propose to make claims for further provision should issue their proceeding and provide the relevant evidence in support of their claim for further provision. At trial it was suggested that the evidence of the Part IV claimants was likely to be agreed. As this Court is familiar with the facts and circumstances of the estates of the deceased and Ms Aylward, any Part IV proceeding and application for approval of terms of settlement on behalf of the minor children should be returnable to this Court, sitting as the Judge in Charge of the Testators Family Maintenance List.
The Court has already enumerated the failure of the practitioners for the plaintiff and the defendant to heed the warnings of the Court at the directions hearing as to the flaws in their approach to the proceeding. While the Court is mindful of the tragic circumstances involving the participants and will make every effort to facilitate the finalisation of the estates, the failures of the practitioners, with their joint approach to attempt to include so many outcomes in a proceeding that sought a declaration as to the order of death, has caused delay, costs and further distress to the families. In the circumstances, the Court requires the practitioners to provide details of their costs so that the Court can be satisfied that they are reasonable and proportionate.
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