Re Settree Estates; Robinson v Settree [2018] NSWSC 1413

Supreme Court New South Wales

Medium Neutral Citation: Re Settree Estates; Robinson v Settree [2018] NSWSC 1413 Hearing dates: 12 September 2018 Decision date: 03 October 2018 Jurisdiction: Equity - Probate List Before: Lindsay J Decision: Subject to allowing the parties an opportunity to be heard as to the form of orders to be made, the Court determined that forfeiture application orders should be made under section 11 of the Forfeiture Act 1995 NSW, conditional upon provision being made (in the form of a trust fund established out of the estates of the parties' deceased parents) for the maintenance, education and advancement in life of a mentally ill son who unlawfully killed both parents, was found not guilty of murder by reason of mental illness, and remains in protective detention as a result of orders made at the conclusion of his criminal trial. Catchwords: SUCCESSION – Forfeiture under public policy rule – Testator killed by beneficiary but beneficiary not guilty of murder by reason of mental illness – Application under s 11 of the Forfeiture Act 1995 (NSW) that the forfeiture rule apply – Whether justice requires that the rule be applied – Forfeiture rule applied subject to terms and conditions

JUDGMENTS AND ORDERS – Orders on terms or conditions – s 86 Civil Procedure Act 2005 (NSW) – Whether Forfeiture Application orders can be made on terms or conditions – Where statutory language differs between Forfeiture Modification and Forfeiture Application orders – No bar on making Forfeiture Application orders on terms or conditions – Terms and conditions imposed

CRIMINAL LAW – General matters – Criminal Liability and capacity – Verdict of not guilty by reason of mental illness – Effect of verdict on entitlement to inherit from victim's estate – Forfeiture rule - Application of the Forfeiture Act 1995 (NSW) – Whether accused to be treated as if found guilty of murder Legislation Cited: Civil Procedure Act 2005 NSW Confiscation of Proceeds of Crime Amendment Act 2005 NSW Evidence Act 1995 NSW Family Provision Act 1982 NSW Firearms Act 1996 NSW Forfeiture Act 1991 ACT Forfeiture Act 1995 NSW Interpretation Act 1987 NSW Mental Health (Forensic Provisions) Act 1990 NSW NSW Trustee and Guardian Act 2009 Probate and Administration Act 1898 NSW Protected Estates Act 1983 NSW Supreme Court Act 1970 NSW Testators Family Maintenance and Guardianship of Infants Act 1916 NSW. Uniform Civil Procedure Rules 2005 NSW Cases Cited: Ability One Financial Management Pty Ltd and Anor v JB by his tutor AB [2014] NSWSC 245 Amicable Society for a Perpetual Life Assurance Office v Bolland (Lord Fauntleroy's case) (1830) 4 Bli NS 194; 5 ER 70 Andrew v Andrew (2012) 81 NSWLR 656 Batey v Potts (2004) 61 NSWLR 274 Bosch v Perpetual Trustee Co Ltd [1938] 463 Briginshaw v Briginshaw (1938) 60 CLR 336 CCR v PS (No. 2) (1986) 6 NSWLR 622 Cleaver v Mutual Reserve Fund Life Assurance [1892] 1 QB 147 Clyne v NSW Bar Association (1960) 104 CLR 186 CPT Custodian Pty Limited v Commissioner of State Revenue (Vic (2005) 224 CLR 98 Edwards v State Trustees Limited [2016] VSCA 28 Egan v O'Brien [2006] NSWSC 1398 Estate of Raul Novosadek [2016] NSWSC 554 Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89 Fitter v Public Trustee [2007] NSWSC 1487 Gonzales v Claridades (2003) 58 NSWLR 211 Goodman v Windeyer (1980) 144 CLR 490 Guler v NSW Trustee and Guardian [2012] NSWSC 1369