Savage v Savage - [2023] QSC 280

SUPREME COURT OF QUEENSLAND

CITATION: Savage v Savage & Ors [2023] QSC 280

PARTIES:
JOHN THOMAS SAVAGE AS EXECUTOR OF THE WILL OF EDWARD ERLE SAVAGE (DECEASED)

(applicant)

v
STEVEN DOUGLAS SAVAGE

(first respondent)

TIFFANY AMANDA SAVAGE
(second respondent)
EDWARD ASHLEY SAVAGE
(third respondent)
TIARNA GINA-MARIE BEAZLEIGH

(fourth respondent)
MEGAN ELIZABETH BEAZLEIGH

(fifth respondent)
EMMALEE JOSEPHINE BEAZLEIGH
(sixth respondent)

FILENO/S:

BS No 10313 of 2023

DIVISION: Trial Division

PROCEEDING: Application

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVEREDON: 8 December 2023

DELIVEREDAT: Brisbane

HEARINGDATE: 13 November 2023

JUDGE: Burns J

ORDER:
THE ORDER OF THE COURT IS THAT:

1. Subject only to paragraph 2, the share of the estate that the mother of the fourth, fifth and sixth respondents would have taken but for her murder of the deceased shall be distributed as to one half to the first respondent, one quarter to the second respondent and one quarter to the third respondent.

2. The parties’ costs of the application, to be assessed on the indemnity basis, shall be paid from the share of the estate that the mother of the fourth, fifth and sixth respondents would have taken but for her murder of the deceased.

CATCHWORDS: SUCCESSION – WILLS, PROBATE AND LETTERS OF ADMINISTRATION – FORFEITURE UNDER PUBLIC

POLICY – where the testator was murdered by a beneficiary – where there was a gift over of that beneficiary’s share if the beneficiary pre-deceased the testator – effect of the forfeiture rule on the gift over – whether the rule in Jones v Westcomb (1711) Prec Ch 316 could be applied to the gift over – evidence otherwise of intention for the gift to pass to the contingent beneficiaries

Beresford v Royal Insurance Co Ltd [1937] 2 KB 197, cited Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, cited

Davis v Worthington [1978] WAR 144, cited Edwards v State Trustees Ltd (2016) 54 VR 1, cited Egan v O’Brien [2006] NSWSC 1398, cited

Ekert v Mereider (1993) 32 NSWLR 729, cited
Helton v Allen (1940) 63 CLR 691, cited
In the Estate of Crippen [1911] P 108, cited
In the Estate of Hall [1914] P 1, not followed
Jones v Westcomb (1711) Prec Ch 316; 24 ER 149, cited
Pike v Pike [2015] QSC 134, cited
Public Trustee v Hayles (1993) 33 NSWLR 154, cited
Re Bailey [1951] Ch 407, cited
Re Edwards; State Trustees Ltd v Edwards [2014] VSC 392, followed
Re Fox’s Estate [1937] 4 All ER 664, followed
Re Keid [1980] Qd R 610, cited
Re McIlwraith [1959] VR 720, cited
Re Rattle (No 2); Equity Trustees Ltd v Halstead [2018] VSC 700, cited
Re Rowney [1992] QSC 66, cited
Re Sinclair [1985] Ch 446, cited
Re Stacey, deceased [1949] St R Qd 244, cited
Re Stone [1989] 1 Qd R 351, not followed
Re Tucker (1920) 21 SR (NSW) 175, not followed
Sadleir v Kahler [2019] 1 Qd R 52, cited
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 Savage v Savage

Details

AGLC: Savage v Savage [2023] QSC 280
Case: [2023] QSC 280
Decision Date: 8 December 2023

CaseChat Overview and Summary

The matter of Savage v Savage involved a dispute over the distribution of an estate following the murder of the testator by the beneficiary. The deceased left a will which included a gift over of the beneficiary's share if they predeceased the testator. The central legal issue was the effect of the forfeiture rule on the gift over, considering the beneficiary's criminal act. Additionally, the court had to determine if the rule in Jones v Westcomb could be applied to the gift over and if there was sufficient evidence of the testator's intention for the gift to pass to the contingent beneficiaries.

The court examined the applicability of the forfeiture rule in the context of the beneficiary's criminal act. It assessed whether the rule in Jones v Westcomb, which traditionally prevents a beneficiary from profiting from their own wrongdoing, could extend to the gift over. The court also considered whether there was any evidence indicating the testator intended the gift to pass to the contingent beneficiaries. The court concluded that while the murderer was not entitled to benefit from their crime, the gift over was valid, and there was clear evidence of the testator's intention for the gift to pass to the contingent beneficiaries.

The court ruled that the share of the estate that the beneficiary would have taken was to be distributed to the contingent beneficiaries as specified in the will. Specifically, half of the share was to go to the first respondent, a quarter to the second respondent, and a quarter to the third respondent. The costs of the application were to be paid from the share of the estate in question.

The final order was that the estate share in question should be distributed as per the will, with the costs of the application paid from that share.

Orders

Orders of the court

THE ORDER OF THE COURT IS THAT:

1. Subject only to paragraph 2, the share of the estate that the mother of the fourth, fifth and sixth respondents would have taken but for her murder of the deceased shall be distributed as to one half to the first respondent, one quarter to the second respondent and one quarter to the third respondent.

2. The parties’ costs of the application, to be assessed on the indemnity basis, shall be paid from the share of the estate that the mother of the fourth, fifth and sixth respondents would have taken but for her murder of the deceased.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Savage v Savage & Ors [2023] QSC 280
PARTIES:	JOHN THOMAS SAVAGE AS EXECUTOR OF THE WILL OF EDWARD ERLE SAVAGE (DECEASED) (applicant) v STEVEN DOUGLAS SAVAGE (first respondent) TIFFANY AMANDA SAVAGE (second respondent) EDWARD ASHLEY SAVAGE (third respondent) TIARNA GINA-MARIE BEAZLEIGH (fourth respondent) MEGAN ELIZABETH BEAZLEIGH (fifth respondent) EMMALEE JOSEPHINE BEAZLEIGH (sixth respondent)
FILENO/S:	BS No 10313 of 2023
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVEREDON:	8 December 2023
DELIVEREDAT:	Brisbane
HEARINGDATE:	13 November 2023
JUDGE:	Burns J
ORDER:	THE ORDER OF THE COURT IS THAT: 1. Subject only to paragraph 2, the share of the estate that the mother of the fourth, fifth and sixth respondents would have taken but for her murder of the deceased shall be distributed as to one half to the first respondent, one quarter to the second respondent and one quarter to the third respondent. 2. The parties’ costs of the application, to be assessed on the indemnity basis, shall be paid from the share of the estate that the mother of the fourth, fifth and sixth respondents would have taken but for her murder of the deceased.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND LETTERS OF ADMINISTRATION – FORFEITURE UNDER PUBLIC