Edwards v Edwards

Edwards v Edwards [2023] NSWSC 1067
Supreme Court of New South Wales
Henry J
Succession – the deceased and the defendant were married in 1982 – during the marriage, they acquired three properties which they held as joint tenants – the deceased’s will appointed the defendant her executor and left her estate to her three sons – the defendant was found guilty of the murder of the deceased – the defendant renounced probate – the administrator of the estate sought a declaration that the forfeiture rule prevented the defendant receiving any interest in the properties under the law of survivorship, and that the defendant held a one half share in each property on trust for the estate, and orders for sale under s66G of the Conveyancing Act 1919 (NSW) – held: but for the application of the forfeiture rule, the deceased’s interest as a joint tenant in the properties would pass to the defendant in accordance with the law of survivorship – the forfeiture rule is a rule of public policy that provides that a person who has unlawfully killed another person is precluded from acquiring a benefit in consequence of the killing – the Forfeiture Act 1995 (NSW) was enacted to empower the Court to modify the effect of the forfeiture rule in certain circumstances, but that power does not apply to an unlawful killing that constitutes murder – it is ordinarily necessary for a plaintiff seeking to enforce to forfeiture rule to re-prove the guilt of a defendant, although this will be to the civil and not the criminal standard – the Court was satisfied on the balance of probabilities that the defendant unlawfully killed the deceased on or about a particular date by murder – the defendant’s certificate of conviction was admissible under s178 of the Evidence Act 1995 (NSW) and established that the defendant was convicted of the deceased’s murder – a certificate of conviction is admissible as an estoppel against a party to civil proceedings – the Court of Criminal Appeal had unanimously dismissed an appeal against conviction on all four grounds raised, including that the verdict of murder was unreasonable and could not be supported having regard to the evidence – the reasons for judgment of the Court of Appeal disclosed a very careful and extensive consideration of the evidence against the defendant in support of the verdict of murder – as to the effect of the application of the forfeiture rule on a joint tenancy, equity will require that the interest taken by a murderer of the deceased be held by that person on a constructive trust, to ensure that the interest be held in the same way as it would have been held if there had, on the slaying, been no enlargement of the interest of the murderer – the primary rule to be enforced is that the murderer 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 – the result was that, while the defendant was recognised at law as entitled to be the sole registered proprietor of the properties by right of survivorship, that benefit did not accrue to the defendant and he held a half interest in each of the properties upon trust for the deceased’s estate in equal shares, and the deceased’s estate was to be regarded as the owner in equity of the undivided half share in the properties – declarations made to this effect – trustees for sale appointed.
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