Egan v O'Brien [2006] NSWSC 1398

Egan v O'Brien [2006] NSWSC 1398

Because the will contained only a gift over if Shane Alan O'Brien predeceased the testator and there was no sufficient evidence that the testator intended that condition to cover the primary gift's failure by forfeiture, the rule in Jones v Westcomb did not apply. Mr O'Brien could not beneficially take because he was convicted of manslaughter of the testator, so the residue was held on trust for the next of kin, the third defendant.

Jurisdiction
Australia
Judgment Date
06 December 2006
Procedural Posture
Summons to Construe the Last Will of Robert Englart / Ex Tempore Judgment
Outcome
The property passes to the first defendant, who holds it on trust for the next of kin, namely the third defendant, the deceased's father.
Legal Topics
['construction of Wills' 'forfeiture Under Public Policy Rule' 'gift Over' 'constructive Trust' 'jones V Westcomb Rule']
['wills and Succession' 'equity' 'trusts'] ['construction of Wills' 'forfeiture Under Public Policy Rule' 'gift Over' 'constructive Trust' 'jones V Westcomb Rule']

Case Brief

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Procedural Posture

Summons to Construe the Last Will of Robert Englart / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the residue given to Shane Alan O'Brien could be taken by him after his conviction for manslaughter of the testator." 'Whether the gift over to the Salvation Army (NSW) Property Trust applied where the primary gift failed because of the forfeiture rule rather than because the primary beneficiary predeceased the testator.' 'Whether the rule in Jones v Westcomb permitted the condition for the gift over to be read as extending to any failure of the primary gift.' "Whether the residue should pass on intestacy or be held on constructive trust for the deceased's next of kin."]

Ratio Decidendi

Because the will contained only a gift over if Shane Alan O'Brien predeceased the testator and there was no sufficient evidence that the testator intended that condition to cover the primary gift's failure by forfeiture, the rule in Jones v Westcomb did not apply. Mr O'Brien could not beneficially take because he was convicted of manslaughter of the testator, so the residue was held on trust for the next of kin, the third defendant.

Court Disposition

The property passes to the first defendant, who holds it on trust for the next of kin, namely the third defendant, the deceased's father.

Orders

  • ['Declare that on the true construction of the will of the late Robert Englart and in the events which have happened, the plaintiff holds the residue of the estate on trust for the third defendant.' 'Order that the costs of the plaintiff on the trustee basis and the costs of the submitting defendants be paid out of...