Supreme Court New South Wales Medium Neutral Citation: Estate of Marcia Ann Dolan [2021] NSWSC 1197 Hearing dates: 9 September 2021 Decision date: 09 September 2021 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Direct that the funds paid into Court by Leonard Francis Saville in proceeding number 3164 of 2008 in this honourable Court be paid out to Christopher William Carroll as tutor for Maureen Winifred Carroll as the person named as the sole beneficiary of the will of the late Barry Thomas Carroll, or in the alternative to Maureen Winifred Carroll's financial manager. 2. Note that there is no grant of probate or letters of administration of the estate of the late Barry Thomas Carroll. Catchwords: SUCCESSION — Administration of estates — Persons entitled on intestacy SUCCESSION — Administration of estates — Whether general gift of residue or intestacy Legislation Cited: Adoption Act 2000 (NSW), s 95 Adoption of Children Act 1965, s 35 Succession Act 2006 (NSW), s 109; sch 1 Wills, Probate and Administration Act 1898, s 61B Cases Cited: Arnott v Leong [2009] NSWSC 187 Bain v Lescher (1840) 11 Sim 398; 59 ER 926 Helton v Allen [1940] HCA 20 In Re Selby (deceased); Cole v Cole [1952] VLR 273 Salier v Angius [2015] NSWSC 853 The Estate of the late Bernard Sullivan Smith [2018] NSWSC 97 Category: Principal judgment Parties: Maureen Winifred Carroll bht Christopher William Carroll (Applicant) Paul Anthony Stow (Interested Party) Representation: Counsel: AF Fleming (Applicant, Solicitor) PA Stow (Self-represented) Solicitors: Fleming Law (Applicant) File Number(s): 2008/0279041 Publication restriction: Nil Judgment 1. HER HONOUR: This is an application by amended notice of motion filed on 17 August 2021 by Maureen Winifred Carroll, by her tutor, Christopher William Carroll. The application relates to the distribution of funds that are currently held in Court (a sum of around $20,000 plus interest). Those funds were paid into Court by Leonard Francis Saville, the executor of the estate of the late Marcia Ann Dolan (the deceased). The issue that has been raised is as to the entitlement to those funds in circumstances where the deceased was murdered by one of her stepchildren and hence his bequest under the deceased's Will was forfeited, as I explain below. 2. The deceased left a Will dated 26 June 1998. Probate of that Will was granted on 18 February 2003 to Mr Saville. Clause 6 of the Will, which is the clause that is relevant for present purposes, dealt with the residue of the deceased's estate and provided for it to be divided: as to 40% to the deceased's biological child, Paul Anthony Stow; and 10% each to the six children of the deceased's husband (the deceased's stepchildren). One of those six children (Gary Michael Dolan) subsequently pleaded guilty to the murder of the deceased and his share in the residue is therefore forfeited in accordance with the common law principles in relation to forfeiture (see Arnott v Leong [2009] NSWSC 187 per Hamilton J at [13], his Honour there referring to GL Certoma, The Law of Succession in New South Wales (3rd edn, 1997) as to the operation and purpose of the rule as to class gifts at 178). (I interpose to note that the Succession Act 2006 (NSW) does not apply as the deceased's last Will was made before 1 March 2008.) 3. The consequence of the forfeiture of that 10% share of the residue is that it passes to the person or persons who would be entitled to it if there had been a lapse of his interest under the Will (Helton v Allen [1940] HCA 20). 4. In the present case, the two alternatives are that it would either pass as part of a general gift of residue that applied on the failure of one of the other gifts under cl 6 or it would pass on intestacy. The applicant has submitted that the deceased's Will contains no effective accrual provision that provides for a fractional part of residue to be added to the surviving shares and that, as there is also there no general residuary clause, the intended bequest to Gary Michael Dolan falls into intestacy. 5. I am satisfied that the Will does not contain either an effective accrual provision or a general residuary clause. The provisions of cl 6, which I do here propose to set out, are structured as two separate gifts in respect of the rest and residue of the estate: the first, as to a 40% share; the second, as to a 10% share each for the six named stepchildren. There is nothing to indicate that the deceased had turned her mind to the possibility that only some of the named beneficiaries would take under the Will (cf the position in Arnott v Leong). Moreover, the structure of cl 6 reveals that the share left to the stepchildren is not a "class gift" as such, but rather comprises separate independent gifts to the members of that group of beneficiaries (see for example, Bain v Lescher (1840) 11 Sim 398; 59 ER 926; In Re Selby (deceased); Cole v Cole [1952] VLR 273; The Estate of the late Bernard Sullivan Smith [2018] NSWSC 97 (Estate of Smith)). 6. That means that, notwithstanding the general proposition that the Court will prefer a construction of a testamentary instrument that leans against intestacy and will seek to preserve, rather than destroy, a gift (see Salier v Angius [2015] NSWSC 853 at [31]) the position is, here, as it was in Estate of Smith, that the gift to Gary Dolan of a 10% share in the residue of the estate is forfeited and that share is subject to a partial intestacy. 7. In those circumstances, the application of s 61B(6) of the Wills, Probate and Administration Act 1898 (which applies under the transitional provisions of the Succession Act 2006 – see cl 13 of sch 1 of that Act) has the effect that the forfeited share passed to the deceased's only sibling, Barry Thomas Carroll, on intestacy (since the effect of the earlier making of an adoption order in respect of the deceased's only biological child, Mr Stow, is that, as a matter of law, the deceased died with no surviving legal issue – see, for example the recognition of the effect of adoption orders on the legal status of a child in s 95 of the Adoption Act 2000 (NSW); and s 35 of the Adoption of Children Act 1965; as to the effect of an adoption order for the purposes of the law of New South Wales). Section 109 of the Succession Act 2006 provides that, for the purposes of a distribution on an intestacy, an adopted child is regarded as a child of the adoptive parent or parents, 8. Mr Carroll has since died. His 10% share in the residue of the deceased's estate passes under his Will to his wife, who is the applicant on the present application (by her tutor, as she is now without capacity). 9. Mr Stow has appeared on the present application and has made submissions and provided supporting material. Mr Stow has provided this material, which includes contemporaneous reports, to support his submission that his adoption back in 1967 was a forced adoption. It is now well-recognised, and I accept, that this will no doubt have carried with it long‑term effects, both for his biological mother (the deceased) and for Mr Stow himself. However, as Mr Stow accepts, the legal consequence of the fact of adoption (albeit a forced adoption) is that legally is the child of his adoptive parents, and not the child of the deceased, and therefore would not take on an intestacy. 10. I should add that I have been provided with material which supports Mr Stow's claim that he suffers from a mental health condition which appears to be one that was inherited from or passed on by his biological mother. He has explained that he is on total permanent disablement benefits as a result of that condition. In the course of submissions, Mr Stow has raised the issue as to whether that gives rise to some form of claim based on a dependency or other relationship with the deceased. The difficulty is there is no such claim on the present application and, if there had been, for example, a claim for family provision, Mr Stow would need to have established a dependency in the sense required under the Succession Act, which would now be well out of time and would require leave. In any event, there is no such claim at this stage. 11. Mr Stow has also raised in his submissions and in the material put forward in support of his submissions, that, at the time that the deceased was murdered, the deceased was in the course of changing her Will and was having conferences and/or communications with a solicitor in relation to a change of the Will, which Mr Stow believes (or has been told) would have left the entirety of the residue to Mr Stow. Mr Stow's belief is that the fact that the deceased was proposing to change her Will was a motivating factor for the murder of the deceased by one of the Dolan children. Again, that is unfortunate, to say the least, for Mr Stow. However, the tragic occurrence for the deceased (and very upsetting as I accept it was for her biological son), does not change the fact that probate has been granted in relation to the Will. Hence the fact that the deceased had been contemplating a change of testamentary disposition does not assist Mr Stow. An application would have been made to set aside the grant of probate for Mr Stow to be able to make any argument as to a living Will (as he intimated might have occurred) and the Will has been, as I understand it, partially administered. 12. Mr Stow has explained that, at the time, he chose not to contest the application for probate as that there was some contention or dispute within the family regarding this; but that does not change the position in which he is now placed (which is that probate has been granted). I must apply the provisions of the Will in light of what has happened (with the forfeiture of the gift to Mr Dolan and the partial intestacy as a result). 13. I note that the funds presently held in Court are of a relatively small amount, and that the applicant was the sole beneficiary of the late Mr Carroll's Will. It does not seem to me to be consistent with the just, quick and cheap resolution of the real issues in dispute to require the expense of a grant of probate to be obtained in relation to the administration of the estate of the late Barry Thomas Carroll. Orders 1. For the above reasons, I make the following directions, which will dispose of the application: 1. Direct that the funds paid into Court by Leonard Francis Saville in proceeding number 3164 of 2008 in this honourable Court be paid out to Christopher William Carroll as tutor for Maureen Winifred Carroll as the person named as the sole beneficiary of the Will of the late Barry Thomas Carroll, or in the alternative to Maureen Winifred Carroll's financial manager. 2. Note that there is no grant of probate or letters of administration of the estate of the late Barry Thomas Carroll. 1. Finally, I add that Mr Stow is to be commended for the courteous and polite way in which he made submissions to the Court in relation to the present application, in what were clearly distressing personal circumstances. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 21 September 2021