Page 4106 - Week 14 - Tuesday, 22 October 1991
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One example of the bad operation of the rule will suffice. In Watts v. the Public Trustee for Western Australia, 1980, the Public Trustee had prepared a will, sent it to the testatrix for signature and asked for its return. On its return to him, having been executed, the Public Trustee failed to observe that the surname of a witness, whose occupation was given as "housewife", was the same as the name of the residuary beneficiary.
In fact, the witness was the wife of the beneficiary. The rule applied and the beneficiary could not take. What followed was a negligence suit against the Public Trustee, which the disappointed beneficiary won. At the same time, someone else took a windfall which the testator had not intended because the residue went elsewhere.
It is very easy as a solicitor, when you have a group in your office and you are not aware of all the family linkages, to put a witness to a signature in a situation where, if all the others died in a bus accident or a plane crash, that witness - a distant relative at the time of the making of the will - could suddenly find himself a beneficiary but disbarred because he happened to be decent enough to witness the will. Section 15 will fix that up.
Now we come to the Forfeiture Bill. There is a basic rule of public policy that a person cannot inherit from a person whom he or she has murdered. The common law is not clear, however, on how far the rule applies to a person who has killed another by way of manslaughter. The English and New South Wales cases diverge, and the New South Wales cases are themselves not consistent. There are some hard cases.
In Public Trustee v. Evans, 1985, the deceased had assaulted his six-year-old daughter in the matrimonial home. He then assaulted his wife, dragged her into a shed in their garden and told her to stay there. He went back to the house, loaded a gun, and placed it on the kitchen table. His wife returned from the shed. He threw a bottle and cutlery at her. She picked up the gun. He advanced on her. She shot him. He died. Mr Justice Young had a great amount of difficulty deciding that the wife could inherit from her husband.
In the ACT it is not clear that she would be able to inherit from her deceased husband, although the circumstances arouse sympathy for her. The Forfeiture Bill now here, and connected to our Bill tonight, will enable the Supreme Court to consider the circumstances of such a case as this and, if it is satisfied that the justice of the case requires the rule to be modified, to allow the wife to inherit.
Mr Speaker, there have been some humorous wills in time. One was left by the German poet Heinrich Heine. He left a will giving his wife all his assets, with one condition - that she remarry, "Because", he says in his will, "then
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