Paul Stow’s mother Marcia Dolan was murdered with an axe by a stepchild while she was sleeping on the lounge at her home in Sydney’s south.
That was in October 2002.
Her will of June 1998 provided in clause 6 that 40% of the residue of her estate would pass to Paul as her only biological child and 10% would go to each of her six stepchildren, being those of her husband.
The axe-wielding stepson – Gary Dolan – pleaded guilty to her murder and according to common law principles, his 10% share of the residue was forfeited.
As a consequence, his bequest lapsed and his share would either become part of residue for division among the six qualified beneficiaries (including Paul) or if such an outcome was precluded on the construction of the will, might be subject to a partial intestacy.
The executor was of the view that because there was no accrual provision in clause 6 itself allowing for a fractional part of residue to be added to the surviving shares and no general residuary clause, the gift to Gary Dolan fell into a partial intestacy.
He applied to the Supreme Court of NSW for guidance.
Justice Kathryn Ward in determining the matter in September held that each of the residual gifts was “separate independent gifts” and “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”.
She agreed – notwithstanding the general proposition that the court should where possible preserve a gift and avoid an intestacy – that Gary’s $20k estate share fell into a partial intestacy.
An unexpected outcome was that Stow – who was given up by the deceased in a “forced” adoption in 1967 and was the legal child of his adoptive parents – was not for intestacy purposes, a child of the deceased and could not receive any part of the forfeited $20k.
Stow had submitted to the court that his “forced” adoption should not have such effect, and contended that at the time of her murder, his mother was in the course of changing her will to leave the entire estate to him. This was – he informed the court – a motive for her murder.
Her Honour – the Chief Justice of the court’s equity division – explained that the forced nature of the adoption did not change the legal position that prevented him from taking on an intestacy from Ms Dolan’s estate nor did the fact that she had been contemplating a change to her will.
Justice Ward also noted that Mr Stow’s needs were not relevant as this was not a family provision application where such matters required consideration.
Ms. Dolan was deemed – in relation to the $20k partial intestacy –to have died with no surviving legal issue such that the forfeited share passed to her only sibling, Barry Carroll.
However, as Mr Carroll had since died, that 10% share in the residue of the deceased’s estate passes under his will to his wife Maureen.
Stow was not barred from receipt of the 40% legacy from the estate, presumably $80k.
The case highlights the need to consider all the possibilities of a beneficiary being excluded from a benefit by early death or otherwise and ensuring the will is drafted comprehensively and robustly to avoid a partial intestacy so the estate passes to those intended by the will-maker to receive it.