PHILLIP WAYNE LAWRENCE [2026] SASC 44

Applicant: PHILLIP WAYNE LAWRENCE Counsel: MR S OWER KC - Solicitor: LRB LEGAL Respondent: JEFFREY JOHN READ In Person Interested Party: MARK JAPPE No Attendance Hearing Date/s: 22/12/2025 File No/s: CIV-25-008704 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. LAWRENCE v READ [2026] SASC 44 Judgment of the Honourable Auxiliary Associate Justice Flourentzou 10 April 2026 SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE - SOUTH AUSTRALIA - PROOF IN SOLEMN FORM SUCCESSION - FORFEITURE WHERE TESTATOR OR INTESTATE KILLED UNLAWFULLY - GENERALLY SUCCESSION - ADMINISTRATION OF ESTATES - DISTRIBUTION - FORFEITURE RULE David Albert Arthur Lawrence died on or about 2 December 2015 (“the Deceased”). At the time of his death, he was in a relationship with Wendie-Sue Dent. On 30 June 2022, Ms Dent was convicted for the murder of the Deceased. The Deceased left a testamentary document appointing Ms Dent as his executor and beneficiary. During the Deceased’s lifetime, he also executed other testamentary documents. The applicant has commenced these proceedings seeking an order for a grant of letters of administration with the penultimate will annexed to be admitted to probate in solemn form as the Deceased’s last will and testament. Succession Act 2023 (SA) s 8, s 11(2) and s 67(1); Forfeiture Act 2024 (SA); Wills Act 1936 (SA), referred to. Savage v Savage & Ors [2023] QSC 280 , applied. R v Dent [2022] SASC 65; Cleaver & Ors v Mutual Reserve Fund Life Association [1892] 1 QB 147; Helton v Allen (1940) 63 CLR 691 ; Troja v Troja (1994) 33 NSWLR 269; Jones v Westcomb (1711) Prec Ch 316; 24 ER 149; Spoehr v Health Services Charitable Gifts Board [2014] SASC 171; Cassarino v Cassarino [2020] NSWSC 454, considered. -- 1 of 20 -- -- 2 of 20 -- LAWRENCE v READ [2026] SASC 44 1 Without intending any disrespect, I will refer to the parties by their first names. 2 David Albert Arthur Lawrence late of 7 Godfrey Court Morphett Vale 5162 died at Morphett Vale 5162 on or about 2 December 2015 (“the Deceased”). The Deceased did not marry and did not have children. At the time of his death, he was in a relationship with Wendie-Sue Dent (“Wendie-Sue”). 3 On 30 June 2022, Wendie-Sue was convicted for the murder of the Deceased.1 The cause of death was found to be the toxic effects of opiates. In the criminal proceedings against Wendie-Sue, the Court was satisfied beyond reasonable doubt that Wendie-Sue had administered drugs to the Deceased which caused the Deceased’s death with an intention to kill him.2 The Court also found that Wendie-Sue had a financial motive to commit murder because she would significantly benefit from the death of the Deceased due to the terms of his last will.3 4 At the date of the Deceased’s death, the major asset of his estate was a property located at 7 Godfrey Court Morphett Vale 5162 (“the Property”).4 The Court is told that the Property has not been sold. 5 After the Deceased’s death, the following testamentary documents were located: • a will dated 25 September 2015 (“the September 2015 Will”); • a will dated 8 October 2004 (“the October 2004 Will”); and • a will dated 30 July 2004 (“the July 2004 Will”). 6 In these proceedings, the Deceased’s brother, Phillip Wayne Lawrence (“the Applicant”), seeks the following orders:5 1. The Court pronounce for the force and validity in solemn form of law the last will and testament of David Albert Arthur Lawrence late of 7 Godfrey Court, Morphett Vale 5162 who died at Morphett Vale 5162 on or about 2 December 2015 being the document bearing the date 8 October 2004 (being the document marked exhibit “RAM1” to the affidavit of Rima Anne Milen sworn on 5 January 2026).6 1 [2022] SASC 65. 2 Ibid [461]. 3 Ibid [456]. 4 Affidavit of Melanie Catherine Bird sworn on 22 July 2025 (‘FDN 2’), 40–1. 5 Originating Application, FDN 1. 6 Affidavit of Rima Anne Milen sworn on 5 January 2026 (‘FDN 15’). -- 3 of 20 -- [2026] SASC 44 Flourentzou AAsJ 2 2. Jeffrey John Read one of the executors as described in the will dated 8 October 2004 be passed over. Isabel Joan Read the other executor as described in the will died during the lifetime of the testator. 3. Jeffrey John Read be passed over as an administrator with the will dated 8 October 2004 annexed of the estate of the Deceased. 4. Pursuant to s 67(1) of the Succession Act 2023 (SA) (“the Act”) or the inherent jurisdiction of the Court, Phillip Wayne Lawrence be appointed as the administrator of the estate of the Deceased. 5. Phillip Wayne Lawrence be entitled to apply for a grant of letters of administration with the 8 October 2004 will annexed in solemn form. 7 I note that Mr Mark Jappe is presently the limited administrator of the Deceased’s estate pursuant to an order made on 21 September 2016 by his Honour Judge Dart.7 A grant of letters of administration pendente lite issued to Mr Jappe on 29 November 2016. If the above orders are made, Mr Jappe’s powers are not formally revoked but rather cease upon the making of the final orders.8 8 I will consider each purported testamentary document. The September 2015 Will 9 The original September 2015 Will has been produced to the Probate Registry in a plastic exhibit packet.9 The September 2015 Will consists of two separate pages and has two staple holes in the top left corner of each page. There is a loose staple contained within the plastic exhibit packet. The September 2015 Will does not have a back sheet. 10 Pursuant to the terms of the September 2015 Will, the Deceased appointed Wendie-Sue as his executor and beneficiary. 11 If Wendie-Sue failed to survive him by one calendar month, he then appointed his brother Kym Robert Lawrence (“Kym”) as his executor and trustee. 12 He then directed that half of his estate be divided equally between his siblings, namely: • the Applicant; 7 Wendie Sue Dent v Phillip Lawrence & Ors (Supreme Court of South Australia, SCCIV-15-1541, Dart AsJ). 8 RR D’Costa, P Teverson and T Synak, Tristram and Coote's Probate Practice (LexisNexis, 31st ed, 2015) 38.11. 9 The will dated 25 September 2015 was delivered to the Probate Registry by the Commissioner of Police as a result of a subpoena that issued by the Court on 16 January 2026. The document is contained within an exhibit package and is marked exhibit number P25 in action number SCCRM-18-307. -- 4 of 20 -- [2026] SASC 44 Flourentzou AAsJ 3 • Susan Merle Lawrence (in the September 2015 Will called Suzanne Meryl Lawrence) (“Susan”); • Kym Robert Lawrence; • Tracy Ann Lawrence (in the September 2015 Will called Tracey Ann Lawrence) (“Tracy”); and • Rodney Donald Law (“Rodney”). 13 The remaining half is then distributed equally between Wendie-Sue’s family; • Margaret Lillian Jones (“Margaret”); • Dianne Margaret Dent (“Dianne”); and • Brian Stanley Jones (“Brian”). 14 The Deceased also directed that a legacy of $5,000 be given to his friend and neighbour, Harley Griesler for his help, discretion and friendship. 15 At clause 5(iv) of the September 2015 Will it states: It is my wish that our dog, Whatt, be cared for until her death, meaning she is kept inside except for walks and toilet trips, and if fenced in, she is allowed outside, but never overnight. I therefore provide the sum of $10,000.00 towards her care for whoever takes her on. (emphasis added) 16 Clause 8 of the September 2015 Will states: If anyone contests this Will and testament, they will only receive the amount of $25.00. The Lawrence family, knowing me to be the oldest child and son, know my word is my bond so in the case that my death is before Wendie Sue Dent’s, everything will automatically belong to her to do with as she wishes and with no interference from any member of the Lawrence Family. 17 The September 2015 Will was witnessed on the second page by Dianne (Wendie-Sue’s sister) and Barry Gibson. Underneath each of their signatures, they recorded that they are from the same address located in New South Wales. Each person applied their initials to the first page in the bottom right corner of the document. 18 The attestation clause reads “Signed by the abovenamed Testator in the presence of:”. Based on the wording of the attestation clause, it is unclear whether the September 2015 Will was duly executed in compliance with s 8 of the Act. An affidavit of due execution and knowledge and approval of content has not been provided. -- 5 of 20 -- [2026] SASC 44 Flourentzou AAsJ 4 19 There is no-one before the Court who seeks to propound the September 2015 Will. The October 2004 Will 20 The original 8 October 2004 Will has been produced to the Probate Registry. 21 Pursuant to the terms of the October 2004 Will, the Deceased appointed his friends Isabel Joan Read (“Isabel”)10 and Jeffrey John Read (“Jeffrey”) as his executors and trustees. 22 He then gave the residue of his estate to Isabel providing she survived him by 28 days. Isabel predeceased the Deceased. She died on 17 July 2011.11 23 If she failed to survive him by 28 days or obtain a vested interest in his estate, he then directed that the residue of his estate be given to Andrew Leslie Read (“Andrew”), if he survived the Deceased by 28 days. Andrew survived the Deceased. 24 However, if Andew failed to survive the Deceased, he then gave the residue of his estate equally between Jeffrey, Paul Harold Read (“Paul”) and Christopher Edward Read (“Christopher”). 25 The Court is told that the Deceased and Isabel were in a romantic relationship between 1976 and 2001.12 Isabel had five children, namely:13 • Andrew; • Jeffrey; • Paul; • Christopher; and • Leanne Jackson (“Leanne”). 26 It appears that the October 2004 Will was prepared by a solicitor. It was also witnessed by a solicitor, Ms Jo-Anne Noreen Milen. The other subscribing witness appears to be Ms Milen’s receptionist, Ms Rima Anne Milen. Ms R Milen has sworn an affidavit of due execution and knowledge and approval of content, which exhibits the original October 2004 Will.14 10 The October 2004 records that Isabel is from the same address as the Deceased. 11 FDN 2, MCB3. 12 Ibid 21. 13 FDN 2, MCB3. 14 FDN 15. -- 6 of 20 -- [2026] SASC 44 Flourentzou AAsJ 5 27 The October 2004 Will consists of two pages and a back sheet. It has been initialled by the testator and the subscribing witnesses on the first page in the bottom right corner of the document. 28 I am satisfied that if the September 2015 Will is not entitled to proof, then the October 2004 Will may be entitled to be admitted to probate as the Deceased’s last will and testament. However, this would depend upon whether the revocation clause contained in the September 2015 Will has operated. The July 2004 Will 29 The Court has only been provided with a copy of the July 2004 Will. It is unclear where the original document is located.15 30 Pursuant to the terms of the July 2004 Will, the Deceased again appointed Isabel and Jeffrey as his executors and trustees. He then gave the residue of his estate to Isabel providing she survived him by 28 days. 31 If she failed to survive him by 28 days or obtain a vested interest in his estate, he then gave the residue of his estate to Andrew, if he survived by 28 days. 32 If Andrew failed to survive by 28 days, he then gave his estate equally to Jeffrey, Paul, Christopher and Leanne. 33 The July 2004 Will appears to have been prepared by the same solicitor, Ms Jo-Anne Noreen Milen, and was executed before Ms J Milen and Ms R Milen as the subscribing witnesses. 34 The only relevant change between the July 2004 Will and the October 2004 Will is the removal of Leanne as a substitute beneficiary. The previous proceedings 35 Shortly after the Deceased’s death, on 14 December 2014, Wendie-Sue commenced proceedings in this Court (“the Previous Proceedings”).16 36 The Previous Proceedings were initially commenced by Wendie-Sue seeking an injunction against the Deceased’s family from disposing of the Deceased’s remains and from holding a funeral for the Deceased. 37 Eventually the proceedings became an application by Wendie-Sue seeking an order for the September 2015 Will to be admitted to probate as the Deceased’s last will and testament. However, the proceedings were essentially stayed for a significant period of time pending the outcome of the criminal proceedings against Wendie-Sue. 15 FDN 2, MCB4. 16 Wendie Sue Dent v Phillip Lawrence & Ors (Supreme Court of South Australia, SCCIV-15-1541, Dart AsJ). -- 7 of 20 -- [2026] SASC 44 Flourentzou AAsJ 6 38 On 30 June 2022, Wendie-Sue was convicted for the murder of the Deceased.17 All of Wendie-Sue’s appeal options were unsuccessfully exhausted.18 39 Accordingly, on 11 December 2024, Wendie-Sue filed a notice of discontinuance of the Previous Proceedings.19 40 At the directions hearing before Associate Justice Dart on 11 December 2024, his Honour made the following remarks:20 The action is discontinued as a result of the applicant remaining convicted of a murder. The special leave application was denied last week by the High Court. The respondents will provide minutes extending the appointment of Mr Jappe as administrator pendente lite. 41 Wendie-Sue’s siblings were not parties to the Previous Proceedings. This would have been on the basis that Wendie-Sue was seeking to propound the September 2015 Will for her own benefit as the sole executor and beneficiary. Her siblings’ interest would remain unaffected. Strictly speaking, the Previous Proceedings were not commenced as a Probate Action, rather they attempted to morph into one. The 2016 Deed 42 While the Previous Proceedings were on foot, the following persons entered into a Deed of settlement: The Deceased’s siblings: • the Applicant; • Susan; • Kym; • Tracy; • Rodney; and Isabel’s children: • Andrew; • Jeffrey; 17 FDN 2, MCB8. 18 Special leave to appeal from the judgment of the Court of Appeal on appeal from the conviction was refused: Dent v Director of Public Prosecution (SA) [2024] HCASL 328 (5 December 2024). 19 Wendie Sue Dent v Phillip Lawrence & Ors (Supreme Court of South Australia, SCCIV-15-1541, Dart AsJ), FDN 95. 20 Ibid FDN 96. -- 8 of 20 -- [2026] SASC 44 Flourentzou AAsJ 7 • Paul; and • Christopher. 43 Inter alia, the above parties reached an agreement. They denied that the September 2015 Will was the Deceased’s last will and agreed that if either the July 2004 Will or September 2004 Will were admitted to probate, the estate would be distributed equally between the persons who are identified above.21 44 However, if the September 2015 Will were admitted, the Deceased’s estate would be distributed in accordance with the terms of the September 2015 Will. 45 The parties also agreed that the Applicant would have the conduct of opposing the proceedings brought by Wendie-Sue seeking an order that the September 2015 Will be admitted. 46 Parties are always encouraged by the Court to resolve their dispute. Indeed, the Court emphasises and assists with offering alternate dispute resolution methods to avoid the need for a trial. The power of compromise in a Probate Action is of great importance. As the learned authors opined in Mortimer on Probate Practice:22 … As soon as the writ has been issued, but not before, the parties may come to terms, and these terms maybe filed and made a rule of Court, binding upon the parties to the compromise, and enforceable in the same way as any other order of the Court. But if a compromise is to be made a rule of Court, the terms of compromise must contain an agreement to that effect. There is practically no limit to the terms upon which parties may agree to compromise; they may in effect make a new will for the testator. Thus an executor may agree that the will that he propounds shall be admitted to probate, but that he will administer the estate in accordance with the provisions of a revoked will; or where a will has been invalidly executed, the persons interested on an intestacy may agree that the will shall be pronounced against, but that they will administer the estate in accordance with its provisions; and, provided all parties interested are of full age and are parties to the compromise, such terms would be made a rule of Court. But if it is part of the terms of compromise that a will shall be pronounced for or pronounced against, the Court must be satisfied by evidence that the will was duly executed, or is invalid, before it will pronounce its decree. (citations omitted) 47 Accordingly, to make the orders that are sought by the Applicant in these proceedings, the Court must still be satisfied that the September 2015 Will is 21 FDN 2, MCB6. 22 H C Mortimer and H H H Coates, Mortimer on Probate Practice (Sweet & Maxwell Ltd, 2nd ed, 1927) 610-611. -- 9 of 20 -- [2026] SASC 44 Flourentzou AAsJ 8 invalid and that the October 2004 Will is entitled to proof in solemn form. Such orders should not be made lightly. The Forfeiture Rule 48 The Forfeiture Act 2024 (SA) commenced in South Australia on 15 January 2025. However, the Forfeiture Act 2024 (SA) does not apply to these proceedings because it only applies to unlawful killings occurring on or after 15 January 2025.23 Accordingly, the common law forfeiture rule is to apply. 49 At common law, a person who unlawfully kills another is precluded from acquiring a benefit as a result of the death, whether under a will or on intestacy: Cleaver & Ors v Mutual Reserve Fund Life Association;24 Helton v Allen.25 50 In the case of Cleaver, Florence Elizabeth Maybrick murdered her husband, James Maybrick. Mrs Maybrick was sentenced to death but was afterwards committed to penal servitude for life. Mr Maybrick had a life insurance policy in favour of Mrs Maybrick. However, the insurance company refused to pay the proceeds of the policy on Mr Maybrick’s death to the executors of his estate. The insurance company claimed that the executors would hold the policy on trust for Mrs Maybrick and that it would be contrary to public policy for Mrs Maybrick to receive the benefit because she had murdered her husband. 51 In relation to the forfeiture rule, Lord Esher stated:26 That the person who commits murder, or any person claiming under him or her, should be allowed to benefit by his or her criminal act, would no doubt be contrary to public policy. 52 The Court held that the proceeds of the insurance policy were payable to the executors of the Mr Maybrick’s estate and that the forfeiture rule would apply to the estate to prevent Mrs Maybrick from receiving the benefit. Lord Esher said:27 The defendants must pay the money to the executors to deal with it according to their duty as executors. They would be trustees of it for the wife if she had not forfeited it; but her interest being forfeited, it forms part of the insured’s estate. If there are creditors, it will go to them so far as may be necessary to satisfy their claims. If anything is left, it will go to the children of the insured if there are any. The rule of public policy in such a case prevents the person guilty of the death of the insured, or any person claiming through such person, from taking the money; but the children would not claim through the mother, but through the father. 23 Forfeiture Act 2024 (SA), Sch1, Part 3, Item 4. 24 [1892] 1 QB 147 (‘Cleaver’). 25 (1940) 63 CLR 691 at 710. 26 [1892] 1 QB 147 at 152. 27 Ibid 155. -- 10 of 20 -- [2026] SASC 44 Flourentzou AAsJ 9 53 The law regarding the application of the forfeiture rule is well established. In Troja v Troja,28 Kirby P (as his Honour then was) provides a detailed commentary of the history, rationale and the developments of the forfeiture rule. 54 There is no doubt that the forfeiture rule applies to Wendie-Sue in relation to the Deceased’s estate. Construction of the September 2015 Will 55 The question that requires consideration is: if the September 2015 Will is admitted to proof, but the forfeiture rule is applied, how would the Deceased’s estate be distributed? 56 Clauses 3, 4 and 5 of the September 2015 Will state: 3. I GIVE DEVISE AND BEQUEATH the whole of my Estate whatsoever kind and wheresoever situate to my partner WENDIE SUE DENT for her sole use and benefit. 4. If my said partner predeceases me or dies within one (1) calendar month of my death I APPOINT my brother KYM ROBERT LAWRENCE Executor and Trustee (“my Trustee”) of this my Will and declare that the following provisions shall have effect. 5. I GIVE DEVISE AND BEQUEATH the whole of my Estate of whatsoever kind and nature and wheresoever situate to my Trustee upon trust:- …. c) To divide the balance then remaining as follows: i) To my siblings Phillip Wayne Lawrence, Suzanne Meryl Lawrence, Kym Robert Lawrence, Tracey Ann Lawrence, Rodney Donld Lawrence as tenants in common/jointly, half share, and ii) To my partner WENDIE SUE DENT’S family, namely Margaret Lillian Jones, Dianne Margaret Dent and Brian Stanley Jones as tenants in common/jointly, half share. (emphasis in original) 57 Wendie-Sue did not predecease the Deceased, and she did not die within one calendar month of the Deceased’s death. 58 Therefore, should the gift over provision operate so that the estate would be distributed between the Deceased’s siblings and Wendie-Sue’s siblings pursuant to clause 5(i) and 5(ii) of the September 2015 Will? 59 Alternatively, does the gift over provision fail and the residue is to be distributed on an intestacy? 28 (1994) 33 NSWLR 269. -- 11 of 20 -- [2026] SASC 44 Flourentzou AAsJ 10 60 The authorities are mixed. 61 Counsel for the Applicant, Mr Ower KC, referred to the learned author Gino Dal Pont in Law of Succession, which states:29 7.58 The orthodox approach is simple: specific gifts in wills to the killer fall into the residuary estate. And if the killer is the sole residuary legatee or if there is no residuary gift, the property is distributed as on the intestacy of the deceased. The killer is disqualified from any benefit under that intestacy. 7.59 Problems have, however, surfaced where the will benefits the killer, but contains a gift over in the event of the killer-beneficiary predeceasing the testator, designed to avoid the doctrine of lapse, but (understandably) not directly addressing the issue of possible forfeiture. The case law reveals a tension between a literal approach to the construction of the will, and a more purposive (albeit fictional) one, (allegedly) more closely aligned with the testator’s likely intention. Some judges have sought to overcome this tension through the vehicle of a trust. Each of these approaches is explained and illustrated below. Earlier decisions appear to have followed a purposive-type approach, taking the view that the gift over may take effect on the killer’s disqualification, grounded in an assumption surrounding the testator’s intention. In Re Barrowcliff, for example, a testator excused a will, leaving her entire estate to her husband in the event of him surviving her, but otherwise on a gift over to trustees for named beneficiaries. The husband murdered the testator. It was argued that, as the gift over was expressed to rest on the husband predeceasing the testator, but the husband in fact survived the testator, an intestacy resulted. Napier J rejected this argument, reasoning that, as the testator had made manifest her intention to dispose of the property, the will should be read as if the gift over took effect subject to the interest previously given. His Honour wrote that: …[i]t could never have occurred to anyone concerned in the making of this will that there was any hiatus between these dispositions, or that this event might happen, to preclude the husband from taking, and yet leave the condition of the gift over unfulfilled. There is English authority aligning with this view, as well as support at first instance in Troja v Troja. Yet the fiction necessary to trigger the gift over – namely, to legally deem the beneficiary to have actually predeceased the testator – enjoys few judicial admirers. 7.60 More commonly, a literal approach is taken in the construction of the will, so that a gift over on the non-survival of the killer will have no effect. In Davis v Worthington, for instance, a testator left her estate to P provided he survived her for 14 days, failing which the estate was to go to a named charity. P murdered the testator, and survived her for more than 14 days. The testator’s next-of-kin, who would take in the event of intestacy, and the charity each claimed the estate. Wallace J held that, as the testator clearly intended that the gift over to the charity would take effect only if P did not survive her for 14 days, and no provision was made for what would happen to the estate were P barred from taking, there was an intestacy. As the question was one of construction of the will, it was incorrect to notionally regard P as predeceasing 29 Gino Dal Pont, Law of Succession (LexisNexis, 3rd ed, 2020) 7.58-7.60. -- 12 of 20 -- [2026] SASC 44 Flourentzou AAsJ 11 the testator or to simply ‘strike out’ his name. Similar ‘literal’ approaches litter the case law in the United Kingdom. (citations omitted) 62 In Restitution Law in Australia, the authors state:30 Gifts over. Although a decision on the construction of one will can seldom be of direct assistance in construing another, we note a possible difference in approach concerning gifts over in favour of persons who are not the next of kin on intestacy. Assume that a will provides a gift in favour of X if X survives the testator, but otherwise to Y (not being the deceased’s next of kin). Also assume there is no ultimate residuary gift. What is to happen to Y’s gift if X murders the deceased? Should the gift go to Y or to the next of kin? Some Australian cases reflect a readiness to construe the will according to what is perceived to be the deceased’s favour obvious though unexpressed intention. They hold that the gift over in favour of Y must a fortiori have been intended to take effect in the event that happened, even though the will literally does not provide for it. The estate is distributed on the basis of a lapse, treating the killer as having died immediately before the testator. These cases purport to apply the rule in Jones v Westcomb, that rule being that in certain cases when events activating a gift over do not happen, the gift over must have been intended to take effect as if the events had happened. It is, however, suggested that principle and the weight of authority support an alternative approach, although the words of a particular will may prevail. In our view Y should be denied the gift, because the event giving rise to the gift over has not literally occurred. The general principle is that the court may not add to or vary a will to give effect to unexpressed intentions. X has survived the testator and on that basis the English case of Estate of Robertson would deny Y the gift, holding that it passes to the deceased’s next of kin. This complies with the principle that the forfeiture rules not operate to alter the terms of a will by deeming events to have happened which did not in truth occur. This approach has been followed in cases in New South Wales, Western Australia, New Zealand and Scotland. 63 The question was considered by the Supreme Court of Queensland in Savage v Savage & Ors.31 The facts and the law applied in Savage are succinctly summarised at [1] – [13]:32 1. The deceased, Edward Erle Savage, was murdered by his daughter, Gail Marie Beazleigh, on 17 July 2000. She was convicted of that crime on 27 November 2002 and sentenced by Ambrose J to imprisonment for life. Her husband was also dealt with, as an accessory after the fact. 2. The deceased was 51 years of age at the time of his death. Under his last will1, he appointed his brother, the applicant, John Thomas Savage, as executor and trustee and left the whole of his estate to such of his children as survived him in equal shares upon each child attaining the age of 25 years. There was also a gift over provision. It was in these terms: 30 K Mason, J W Carter and G J Tolhurst, Restitution Law in Australia (LexisNexis Butterworths, 2nd ed, 2008) Ch 19 [1923]. 31 [2023] QSC 280 (‘Savage’). 32 Ibid [1]–[13]. -- 13 of 20 -- [2026] SASC 44 Flourentzou AAsJ 12 “[I]n the event of any such child of mine predeceasing me and leaving issue then such issue shall take and if more than one equally between them the share to which his her or their parent would have been entitled under this my Will”. 3. The deceased had three children – the first respondent, Steven Douglas Savage, Edward John Savage and Ms Beazleigh. Edward John Savage died on 6 January 1997 leaving two children, the second and third respondents, Tiffany Amanda Savage and Edward Ashley Savage. Ms Beazleigh has three children, the fourth, fifth and sixth respondents, Tiarna Gina-Marie Beazleigh, Megan Elizabeth Beazleigh and Emmalee Josephine Beazleigh. All respondents are adults. 4. Probate of the will was granted on 17 November 2000 and, since then, one-third of the net estate has been distributed to the first respondent. The remainder, being approximately $519,000, is held by the applicant on trust pending determination of the question which lies at the heart of this application, viz, whether on the true construction of the will the fourth, fifth and sixth respondents are entitled to a distribution of what would have been their mother’s share of her father’s estate but for her crime. 5. If a person is criminally responsible for the death of another, and that death is a material fact in the vesting of property in favour of that person, the interest in that property is forfeited. In the law of succession, this is widely known as the forfeiture rule, and it is one of long-standing. Another way of expressing the rule would be to say that no person can obtain, or enforce, any rights resulting to him or her by their own crime including any interest the offender might have as a beneficiary under the will of the victim. As Sir Samuel Evans said in a case involving the administration of the estate of the wife of Dr Crippen, the “human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence”. It follows that, by her murderous act, Ms Beazleigh forfeited her interest as beneficiary under her father’s will. 6. So much then is clear. 7. What is not so clear is whether the gift over provision in the subject will is effective to pass what, but for the forfeiture, would have been Ms Beazleigh’s share of her father’s estate to her three children. 8. Gift over provisions are commonly included in wills to, relevantly, avoid the doctrine of lapse by providing for a gift over to another beneficiary in the event that the primary beneficiary dies before the testator. The specified contingency – the death of the primary beneficiary – is obviously key. Thus, if the court adopts a literal approach to the construction of the will in a case such as this where the contingency did not occur, the gift will not pass to the contingent beneficiaries (here, the fourth, fifth and sixth respondents) but will fall into residue to be distributed in accordance with the other terms of the will. This literal construction has been applied in a long line of cases where it was held that the relevant gift over did not take effect unless the exact contingency had occurred. 9. While the results in those cases are consistent with the well-established principle of construction that a court cannot give effect to an intention that is neither expressed nor implied in the words used in the testamentary instrument when read with the circumstances in which the will was made, different results have obtained when the rule in Jones v Westcomb has been pressed into service. In those cases, although the exact contingency upon which the gift over was to take effect had not occurred, it was held that the gift over must have been intended to take effect on the happening of the event that actually occurred (here, for example, forfeiture of Ms Beazleigh’s interest). -- 14 of 20 -- [2026] SASC 44 Flourentzou AAsJ 13 10. The precise scope of the rule in Jones v Westcomb remains elusive despite its antiquity. It has been the subject of much judicial consideration through which reference is often made to what was said by Romer LJ in Re Fox’s Estate: “The principle is applicable, therefore, only in those cases where the court, looking at all the relevant circumstances of the case, including, of course, the will itself, comes to the conclusion that the testator must a fortiori have intended the disposition over to take effect in the event which has actually happened, although it is not the event which he has specified in his will as the one in which the gift over is take effect.” 11. In Re Edwards; State Trustees Ltd v Edwards, McMillan J carefully analysed what has been said about the scope of the rule in the courts as well as in academic writings and, after endorsing the statement by Romer LJ in Re Fox’s Estate, her Honour observed: “The requirement that only contingencies upon which the testator must a fortiori have intended the gift over to operate are saved by the rule ensures that the Court does not impute an intention to the testator that is not supported by the tenor of the will in the light of any admissible extrinsic evidence. The exception to the general rule, that a gift over upon a certain contingency will not take effect unless the exact contingency occurs, is restricted to a fortiori contingencies.” 12. I respectfully adopt those observations. As later discussed in the same case, before the rule in Jones v Westcomb can be deployed to save a gift over provision in a will, the court must be satisfied that the testator intended that the gift over covers the contingency that actually occurred “rather than on any contingency causing the primary gift to fail”. Only a fortiori contingencies “may be written into the will” – that is to say, “contingencies that may be implied by necessary implication” – and, as such, “it is difficult to imagine circumstances where the intention that a gift over should operate upon the primary beneficiary’s predeceasing the testator could encompass the contingency of the testator’s being killed by the beneficiary”. As Windeyer J remarked in Ekert v Mereider: “[T]he rule in Jones v Westcomb may properly be applied but not in order to bring about a result the court considers fair. I should add that in many cases it would be dangerous for a court to interpret a will based on presumed intentions. The present case would clearly be one of those. I do not see how a court could possibly find that a testator must have intended a child of his murderer (not being a child of his) to take in the event that he was murdered by the child’s mother. I realise of course that the contingency is not one for which a testator can decently provide in his will but that does not mean that the court should imply an intention for which there is no sound basis.” 13. Following the same line of reasoning, I am unable to read the gift over provision in the subject will as though it was intended to cover any eventuality under which the primary gift did not take effect. Nor can it be concluded as a matter of necessary implication that the deceased must have intended his gift to his daughter would pass to her children if he was murdered by her. The rule in Jones v Westcomb has no application. (citations omitted) 64 Based on the authorities, I am unable to read the gift over provision in the September 2015 Will as though it was intended to cover any eventuality under which the primary gift did not take effect. It cannot be concluded that the Deceased -- 15 of 20 -- [2026] SASC 44 Flourentzou AAsJ 14 intended that half of his estate would pass to Wendie-Sue’s family, if he was murdered by her. Therefore, I take the same approach as Burns J in Savage, that the rule in Jones v Westcomb33 has no application and the gift over provision is not to be applied. It is not appropriate in the circumstances of this case for the Court to imply that the Deceased intended for the gift over provision to operate. 65 As David Haines QC said in Construction of Wills in Australia:34 A Court’s first duty is to ascertain the intention or purpose of a testator in the words used by him or her in the will. Where there is uncertainty in that expression, a court may consider the content of dubious words by reference to other parts of the document which may explain or give effect to that general intention. The full intention may be ascertained if not by the explicit terms of the will then by implication. When resort is made to implication, the procedure may involve selection of the ‘most likely meaning of several possibilities more or less open to choice’ but, if so, caution must be employed and a reasonable degree of certainty as to the implication is required. Put simply, implication involves a process that, in the result, adds something not stated expressly or implicitly in the document. An implication may be drawn from the will itself but that implication must be manifest in some form from the document as a court cannot surmise on such a matter. A court may not infer or use conjecture in this process. (footnotes omitted) 66 There is no express or implied evidence within the September 2015 Will to infer that the Deceased intended for the gift over provisions to operate in these circumstances. 67 Therefore, it is simply not possible for the Court to conclude with reasonable certainty that the Deceased intended for the residue of his estate to be distributed in accordance with clauses 5(i) and 5(ii) of the September 2015 Will in the event that he was murdered by Wendie-Sue. Concerns regarding the September 2015 Will 68 Even if I am wrong regarding the construction of the September 2015 Will, I have serious reservations regarding the validity of that document. As Mr Ower submitted, the Court does not need to conduct its own investigations regarding the September 2015 Will, but the Court must still be satisfied that the September 2015 Will is not entitled to proof. As Justice Gray said in Spoehr v Health Services Charitable Gifts Board:35 In summary, the authorities give rise to the following principles regarding contentious probate actions where orders are sought by consent, in default or by reason of being undefended. The Court does not have a duty to conduct any independent investigation in relation to the validity of the will. However, in cases where an order is sought pronouncing against a will, the Court should conduct an investigation where circumstances exist which 33 (1711) Prec Ch 316; 24 ER 149. 34 David M Haines QC, Construction of Wills in Australia (LexisNexis Butterworths, 1st ed, 2007) [34.5]. 35 [2014] SASC 171. -- 16 of 20 -- [2026] SASC 44 Flourentzou AAsJ 15 give rise to a well founded suspicion that the document is not valid and no party comes forward to rebut those circumstances.36 69 In Cassarino v Cassarino,37 Justice Hallen said:38 Principles to be applied 16. The principles to be applied in a case such as this are clear. In broad terms, if the last will of a testator is not to be admitted to probate, but an earlier one is, the last will has to be pronounced against and the earlier will (if there is one) pronounced for. Where a genuine doubt exists as to the validity of a testamentary document, the court, as part of a compromise, may be willing to pronounce against that testamentary document, but the court will not, as part of a compromise, be willing to pass over a testamentary document (either a will or codicil) which is, apparently, a valid document, and as to which there is no evidence of invalidity. Where the evidence filed is insufficient, the court may refuse to approve the compromise and instead direct a trial on written evidence, even where the matter is agreed or uncontested. 17. As long ago as 1991, Powell J in Estate of Clarence Gilbert Alcorn (Supreme Court (NSW), Powell J, 9 August 1991, unrep), wrote at 7: ‘Since they so neatly encapsulate my own views as to the duty of an executor, the duty of, and the practice which ought normally to be adopted by, the Court when an executor, or the Court, is faced with a situation similar to that which I am now concerned to deal, I think it convenient to incorporate, here, the following observations of Cairns J (as His Lordship then was) in In Re Muirhead ((1971) P 263, 265-6): “I approach the matter with the conviction that it is the duty of a Court of Probate to give effect, if it can, to the wishes of the testator as expressed in testamentary documents. Sometimes it is impossible to discover the true intention of the testator, because there may be doubts about his testamentary capacity, or about whether he knew and understood the contents of some document propounded, or there may be doubts about the formalities of execution. In such cases a compromise is often reached, and given effect to by the court. Where certainty cannot be achieved, it is often better that a will which is prima facie valid should be admitted to probate than that there should be a prolonged investigation into allegations of incapacity or undue influence; and it is sometimes better that a will or codicil should be pronounced against, where there are good reasons for suspecting its validity, although by a full inquiry it might be possible to remove those suspicions. It is proper that in either of these cases, terms should be agreed (and if all parties are not sui juris approved by the court), to take account of the doubts which remain.”’ 36 Ibid [38]. 37 [2020] NSWSC 454. 38 Ibid [16]-[17]. -- 17 of 20 -- [2026] SASC 44 Flourentzou AAsJ 16 70 There are very real concerns regarding the validity of the September 2015 Will. In the criminal proceedings before Justice David,39 her Honour stated at [130] – [132]: Discussions by the deceased about his will before his death The deceased had discussions about his will with others in the months preceding his death. The prosecution accepts that the deceased’s will (Exhibit P25) reflects his testamentary wishes as expressed to others around the date of its creation on 25 September 2015. However, on the prosecution case, in the weeks prior to the deceased’s death, he was again turning his attention to his will, Ms Dent became aware of that fact and she was concerned that the deceased was intending to change his will so she was no longer the main beneficiary. The prosecution rely on the following pieces of evidence to support this aspect of their case: the deceased spoke with his neighbour, Mr Harley Geissler, as to his contact details for his will; Ms Dent’s conversation with Mr Kym Lawrence on 29 November 2015 about the deceased’s will; and, that the electronic draft of the will was accessed and modified on 1 December 2015. Mr Geissler gave evidence that about two to three weeks prior to the deceased’s death, the deceased asked him for his contact details. The deceased said that he was going to include him in his will because he had looked after his house and dogs. Mr Geissler said the deceased wrote down his details and Ms Dent was present for the conversation. Mr Geissler was shown a copy of the will and asked about paragraph 5(c)(iii), ‘I bequeath the sum of $5,000.00 to my friend and neighbour Harley Griesler for his help, discretion and friendship’. He agreed that the spelling of his surname as ‘Griesler’ in the will is wrong and that he has never spelt his surname in that way. He said he had not seen the will before. 71 At [134] and [136] her Honour then stated: The police interrogated the hard drive of a computer seized from Ms Dianne Dent’s home in Dapto on 17 February 2017. It revealed an electronic document in identical terms to the signed will, except that a reference to the dog ‘Whatt’ had been changed to ‘our family pet’. It is unclear on the evidence when the dog, Whatt, died. Metadata of the document showed that it was created on 25 September 2015, which is the same date the seized hardcopy of the will (Exhibit P25) was signed. It showed that the electronic document was last accessed and modified on 1 December 2015. … In February 2017, Ms Susan Lawrence located an unsigned draft of the will at the Premises, which was in almost identical terms to the signed will, but it was unsigned by the deceased and pre-witnessed by Ms Dianne Dent and her partner, Mr Gibson. It also included the reference to ‘our family pet’ in place of the dog, ‘Whatt’. 72 There are various versions of the September 2015 Will. 73 The document that has been produced to the Court and marked exhibit P25 was prepared by Dianne.40 It was in Wendie-Sue’s possession after the Deceased’s death and was produced by her on 4 December 2015 to the Deceased’s family at 39 [2022] SASC 65. 40 Ibid [129]. -- 18 of 20 -- [2026] SASC 44 Flourentzou AAsJ 17 the Deceased’s Property.41 A copy of the document was also located in Dianne and Mr Gibson’s motor home in Dapto, New South Wales.42 74 There is also an electronic version of the document that was located on Dianne’s computer, which was also in Dapto, New South Wales. The electronic document is not dated nor signed and is not in the same terms as exhibit P25. The Metadata of the document on Dianne’s computer showed that it was created on 25 September 2015 but was accessed and modified on 1 December 2015.43 75 Dianne assisted with the preparation of the September 2015 Will. She was also a witness to the document, and a copy of the document was found in her motorhome and on her computer. However, she has not come forward in the last 11 years seeking to propound it. 76 Furthermore, in February 2017, the Deceased’s sister Susan located an unsigned draft of the September 2015 Will at the Deceased’s Property, which had been signed by Dianne and Mr Gibson but not by the Deceased. Again, it was not in identical terms as in exhibit P25.44 77 There is also the evidence of Mr Geissler. He said that the Deceased spoke to him two or three weeks prior to his death. This would have been sometime in November 2015. During that conversation, Mr Geissler said that the Deceased told him that he wanted to include him in his Will.45 That would imply that he was not already in the Deceased’s Will, which was purportedly signed on 25 September 2015. Surely, if the Deceased had already included Mr Geissler in his will, he would have told him that in the context of the conversation. 78 The September 2015 Will also contains spelling errors.46 In the document Susan Merle’s name is spelt ‘Suzanne Meryl’ and Tracy’s name is spelt ‘Tracey’.47 Mr Geissler’s name is also incorrectly spelt as ‘Griesler’ – noting that the Deceased had written down Mr Geissler’s details in November.48 79 Based on the attestation clause contained within the September 2015 Will, I also have concerns that it was not duly executed in accordance with s 8 of the Act or s 8 of the repealed Wills Act 1936 (SA). However, I do appreciate that this issue may be overcome under s 11(2) of the Act, if a person with an interest under September 2015 Will sought propound it. 41 Ibid [115]. 42 Ibid [299]. 43 Ibid [134]. 44 Ibid [136]. 45 Ibid [132]. 46 Ibid [415]. 47 Ibid [153]. 48 Ibid [132]. -- 19 of 20 -- [2026] SASC 44 Flourentzou AAsJ 18 80 The inclusion of clause 8 referred to above at paragraph 16, is also peculiar because it seems to pre-empt an issue arising between Wendie-Sue and the Deceased’s family. However, a similar clause was not included in the earlier wills. 81 On the other hand, the July and October 2004 Wills were professionally prepared, witnessed and held by the same solicitor. The Deceased obviously understood the importance and requirements of a valid will. 82 Therefore, I do not see any utility or benefit in ensuring that notice of these proceedings is provided to Margaret, Dianne and Brian. 83 Firstly, I am of the view that it is highly unlikely that any of the documents dated September 2015 would be entitled to proof. The evidence surrounding the purported making of those documents create suspicious circumstances. 84 Secondly, even if I am wrong and one of the September 2015 Wills is entitled to proof, the forfeiture rule is to apply and the gift over provision does not operate. 85 To require the Applicant to provide notice of the proceedings would serve no utility and would only unnecessarily further prolong the administration of the Deceased’s estate, at the estate’s expense. To that extent, if an order was made by the Court that notice was to be provided to Margaret, Dianne and Brian, it would infer that their interest may be adversely affected by the orders sought by the Applicant and that they should have an opportunity to be heard. However, in my view any application or defence filed by them would be doomed to fail. Therefore, the Court cannot be satisfied that their interest is adversely affected by the orders sought to require that notice should be given. Indeed, to order that notice is to be given would only serve to further promote unmeritorious litigation. 86 For the above reasons, I am satisfied that it is appropriate to make the orders as sought by the Applicant. The Applicant is to provide draft minutes of order. -- 20 of 20 --