Rivers v Rivers

[2002] SASC 437

RIVERS  v  RIVERS & ORS
[2002] SASC 437

Full Court: Duggan, Williams and Martin JJ

1. DUGGAN J. This is a case stated for the consideration of the Full Court pursuant to s 49 of the Supreme Court Act 1935.

2. The questions raised in the case stated require the court to consider whether the rule under the general law that the felonious killer of a person is precluded from inheriting property from that person applies in certain civil proceedings which have been commenced in the Supreme Court.

3. The litigation arose in the following way.  Donald Graeme Rivers (the deceased) died from a bullet wound on 4 July 1997.  It is not in dispute that the bullet was fired from a rifle held by the deceased’s wife, Mrs Ma Gina Orlane Rivers, who is the first defendant in the civil proceedings.  The first defendant has admitted in the pleadings that she was holding the rifle at the time, but has asserted that she did not deliberately point it at the deceased.  She has admitted applying pressure to the trigger, but she has denied that she had any intention to kill her husband or that she was acting recklessly at the time.  She claims she thought the rifle was unloaded.

4. The first defendant was tried in the Supreme Court on an information alleging that she murdered the deceased.  She was acquitted of murder and manslaughter.

5. The deceased died intestate with an estate exceeding $10,000. Section 72G of the Administration and Probate Act 1919 provides that if the value of an intestate estate exceeds $10,000, the deceased’s spouse is entitled to the sum of $10,000 and to one-half of the balance of the estate.

6. The plaintiff in the proceedings is the son of the deceased by an earlier marriage.  In the statement of claim the plaintiff seeks the following declarations:

   “8.1That the first defendant intentionally or recklessly caused the death of the deceased;

   8.2In the alternative to 8.1, that the first defendant committed an unlawful and dangerous act which resulted in the death of the deceased;

   8.3As a consequence of the matters pleaded herein the first defendant is not entitled to any benefit in the estate of the deceased and that any interest in that estate to which the defendant would otherwise be entitled at law or in equity be deemed to have been forfeited by her;

   8.4That that proportion of the estate to which the first defendant would otherwise be entitled be distributed equally between the children of the deceased referred to in paragraph 2 hereof.”

7. The case stated reserves the following questions for the consideration of the court:

   “1Is the Plaintiff estopped or otherwise precluded in point of law from obtaining the declarations sought in:

   1.1   paragraph 8.1;

   1.2   paragraph 8.2;

   1.3   paragraph 8.3;

   of the Second Amended Statement of Claim?

   2      Would it:

   2.1     constitute an abuse of process of the Court; or

   2.2     be contrary to public policy;

   to allow the Plaintiff’s action to proceed to trial?

   3Is the Plaintiff…