Case No. CHANF 95/1677/B 

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
(His Honour Judge Weeks)

Royal Courts of Justice

Date: Thursday, 17th April 1997

B e f o r e :

LORD JUSTICE NOURSE
LORD JUSTICE HENRY
SIR PATRICK RUSSELL

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IN THE MATTER OF HEATHER ELIZABETH JONES DECEASED

ROBERT JONES	Plaintiff

-v-

(1)  MIDLAND BANK TRUST COMPANY LIMITED
(2)  ALAN JOSEPH PERRY
(3)  MICHAEL JOHN AMPLETT
(4)  STEVEN JAMES AMPLETT	Defendants

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MR S EYRE (instructed by Messrs Epsley & Co., Telford) appeared on behalf of the Appellant Second Defendant.
MR U STAUNTON (instructed by Messrs Irwin Mitchell, Sheffield) appeared on behalf of the First Defendant.
MR N MEARES (instructed by Messrs Amery Parkes, Birmingham) appeared on behalf of the Third and Fourth Defendants.
MISS J WILLETTS (Solicitor Advocate) (instructed by Messrs Edge & Ellison, Birmingham) appeared on behalf of the Plaintiff.
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J U D G M E N T (As Approved by the Court)

LORD JUSTICE NOURSE:    By clause 4(b) of her last will dated 31st May 1965 Heather Elizabeth Jones directed her executor and trustee to hold the whole of her net estate upon trust for her son, Robert Jones, absolutely.  The will proceeded: 
"(c)  If my said Son Robert Jones shall predecease me for such of my nephews Michael John Amplett and Steven James Amplett as shall be living at the date of my death and in equal shares if more than one."

On 18th July 1991 Mrs Jones was killed by Robert Jones, who on 13th November 1992, having been charged with murder, pleaded guilty to her manslaughter at Worcester Crown Court, was convicted accordingly and was sentenced to three years' probation.  It being indisputable, subject to any order made under the Forfeiture Act 1982, that the gift in favour of Robert Jones cannot take effect, we must now decide, as a preliminary issue, whether Mrs Jones's estate passes under the gift over to the nephews or devolves as on her intestacy.  

Mrs Jones's will was proved on 22nd November 1991 by Midland Bank Trust Company Limited, the sole executor and trustee therein named, the net value of her estate being certified for that purpose at £200,586.21.  On 11th February 1993, within the period of three months beginning with his conviction prescribed by section 2(3), Robert Jones issued an originating summons in the Chancery Division under the 1982 Act seeking a modification of the forfeiture rule insofar as it applies to the gift to him under his mother's will and his entitlement on her intestacy.  Mrs Jones having died a widow and without having had issue other than Robert Jones, he would, in normal circumstances, have been solely entitled to any property as to which she died intestate.  If he had predeceased Mrs. Jones, her surviving sister, Janet Amplett, the mother of Michael and Steven Amplett, would have been solely entitled.  Accordingly, in addition to Midland Bank Trust Company Limited and the two nephews, Mrs Amplett was made a defendant to the proceedings.  However, she died on 16th January 1994, leaving a will under which her co‑habitee, Alan Joseph Perry, was the sole beneficiary.  On 18th April 1994 her will was duly proved by Mr. Perry and Robert Watson, the two executors named therein.  

By an order made by the district judge on 1st June 1994 it was ordered, by paragraph 1, that the proceedings be carried on against Mr Perry in place of Mrs Amplett.  By paragraph 2 there was directed to be tried as a preliminary issue the question: 
		"... whether on the true construction of the will of Heather Elizabeth Jones, deceased, dated the 31st of May 1965 and in the events which have occurred and subject to the plaintiff's application pursuant to section 2 of the Forfeiture Act 1982 for relief from forfeiture the first defendant as executor holds the residuary estate of Heather Elizabeth Jones:
(a)	upon trust for the next of kin on an intestacy of Heather Elizabeth Jones;  or
(b)	upon trust for the third and fourth defendants pursuant to clause 4(c) of the will;  or
(c)	upon some other, and if so what, trust."

It was also ordered that Robert Jones should take no further part in the trial of the issue.  However, by a further order made by consent on 23rd February 1995 the district judge ordered that Robert Jones should be allowed to take part.  

The issue came on for trial in Bristol before His Honour Judge Weeks QC, sitting as a judge of the High Court, who on 22nd September 1995 made a declaration in the terms of alternative (b), that is to say in favour of the nephews.  With the leave of the judge, Mr Perry now appeals to this court, his appeal being supported by Robert Jones.  The point is a very short one.  In my view it is covered by authority which, even if it is not binding on this court, is of great persuasive force.  

Of the decisions cited here and below only three are in point.  The earliest of them is Re the Estate of Robertson, deceased (1963) 107 Sol.Jo. 318.  It appears from the brief report that the testator in that case appointed one Marsden sole executor and beneficiary, with a proviso that if Marsden should die within the testator's lifetime his (Marsden's) adopted daughter should be the sole executrix and beneficiary.  Marsden murdered the testator and was subsequently sentenced to life imprisonment.  The matter came before Mr Justice Karminski by way of a probate action, in which the adopted daughter propounded the will and claimed a declaration that Marsden be deemed to have died within the testator's lifetime.  The judge said that it had long been recognised in English jurisprudence that a person who feloniously killed another could not take any benefit under the victim's will and that the question therefore arose whether Marsden should be deemed to have died within the testator's lifetime.  He continued:
		"It was obvious that the testator failed to foresee the contingency that he might be murdered by [Marsden].  That, however, could hardly be said to be a contingency for which he might have been expected to provide.  It did not constitute an omission from the will which the court would be justified in writing into it.  The testator's words were clear and precise.  The gift to [the adopted daughter] could only be effective if [Marsden] had died in the testator's lifetime.  The declaration sought must therefore be refused."

In the result, the testator's estate devolved as on his intestacy. 

Judge Weeks recognised that that decision was directly in point.  For practical purposes, he could see no distinction between the two cases.  He declined to follow the earlier decision.  

In Re Sinclair, deceased [1985] Ch. 446 the testator, who had been divorced in 1962, had made a will in 1958 leaving his estate to his wife, with a proviso that if she predeceased him or did not survive him for one month his estate should go to the Imperial Cancer Research Fund.  The testator died in 1963 without having made a new will and his former wife survived him by the stipulated period of one month.  The outcome of that case depended on the provision, analogous in its effect to the forfeiture rule, contained in section 18A(1)(b) of the Wills Act 1837 (as amended), which provides that, where a testator is divorced after having made his will, any devise or bequest to his former spouse shall lapse, except in so far as a contrary intention appears by the will.  This court held that the gift over to the Imperial Cancer Research Fund did not take effect.  The foundation of the decision was the interpretation of the word "lapse" in section 18A(1)(b) as meaning no more than "fail".  It did not mean "fail with the same consequences as if the former spouse had predeceased the testator". On that footing, it was held that since neither of the two contingencies on which the gift over to the Fund had been expressed to take effect had occurred, the estate devolved as on the testator's intestacy.  

The leading judgment was given by Slade LJ, who, at p.455, said:
		"I am bound to say that I have some sympathy with the fund, because, like the deputy judge, I have more than a sneaking suspicion that, if the testator had addressed his mind to the contingency which in the event happened, he would have wished the estate to go to the fund.  However one cannot, I think, possibly say with any certainty that merely because this testator in 1958 intended that his estate should go over to the fund if his wife should predecease him, he would necessarily and a fortiori have intended that the same results should ensue if the marriage ended by divorce during his lifetime.  As the deputy judge pointed out, the truth of the matter is that, when he made his will, he clearly did not address his mind in any way to the unhappy contingency of a future divorce.  It would not, I think, be open to the court to rewrite the will by adding other specific contingencies to those clearly expressed in clause 4 on the basis of mere intelligent speculation as to what the testator might have intended if his marriage were to end in divorce.  It could only be done, if at all, by a process of necessary implication, ..."   

Judge Weeks considered that decision and was of the opinion that it could be distinguished on a ground which he expressed as follows:  "An important distinction between the present case and Re Sinclair is that the event which did happen and was not anticipated by the testatrix was an event which ex hypothesi would not give her the opportunity to rewrite her will.  If one had asked Mr Sinclair at the time of making his will `What do you want to happen if your marriage ends in divorce?' he might well have said `I do not know.  I will consider that situation when the divorce occurs.'  That luxury, if it is a luxury, was not one open to Mrs Jones.  The event which did occur of itself precluded any making of a new will, and it seems to me that it is possible by necessary implication to discern what her wishes would have been by construing the will and the words she has used and applying them to the event which actually did occur." 

While I have every sympathy with the view expressed by Judge Weeks, in my judgment it does not provide a sound basis for distinguishing this case from Re Sinclair.  It may be that the judge's thinking as to Mrs Jones's reaction to the possibility of her being unlawfully killed by her son involves more intelligence and less speculation than in Re Sinclair.  But it is speculation nonetheless.  In this connection Mr. Eyre, for Mr Perry, has pointed out that the principal asset of Mrs Jones's estate was a half share of the farm which had been left equally to her and Robert Jones by her late husband's will.  Mr Eyre said, and I see force in the submission, that it would be speculation to suppose that Mrs Jones would necessarily have wanted her half share of the farm to go to her two nephews when they would have been locked into the property with the son who had killed her.  In my view Re Sinclair should be treated as an authority of great persuasive force which cannot be soundly distinguished from this case.  

The third decision was not cited to the learned judge.  It is Hunter's Executors, Petitioners (1992) SLT 1141, a decision of the Second Division of the Inner House of the Court of Session, where the facts, like those of Re the Estate of Robertson, deceased, were very comparable to those of the present case.  By her will the testatrix left the whole residue and remainder of her means and estate absolutely to her husband, Andrew Hunter: 
		"... whom failing should he predecease me or should we die simultaneously or be held to have died simultaneously to any child or children born or to be born to me and the said Andrew Hunter, equally between them if more than one ... "

with a substitutionary gift in favour of the issue of any child who predeceased her.  The will proceeded:  
		"In the event of the said Andrew Hunter predeceasing me or of our simultaneous death as aforesaid and there being no surviving child (or issue) born to me and the said Andrew Hunter so as to succeed to my estate, in that event only I leave the whole residue of my estate absolutely to my sister [and stepson] equally ..."

The testatrix was murdered by her husband, Andrew Hunter.  There were no children of the marriage.  It appears that the testatrix' sister argued in favour of an intestacy.  So the contest was between the testatrix' stepson, who took under the gift over, and intestacy.  

The Court of Session decided in favour of an intestacy.  In the opinion of the court delivered by the Lord Justice-Clerk (Lord Ross) it is stated that there is clear authority that the forfeiture rule in Scotland is based at least partly upon considerations of public policy.  At p.1143F, we find this: 
		"We agree with counsel for the heirs on intestacy that such a rule of public policy should be carried no further than is necessary to achieve its object.  In our opinion whilst considerations of public policy lead to the right of Andrew Hunter being forfeited, there is no consideration of public policy which would support the deceased's estate being then distributed as if Andrew Hunter had died."

It was held that the gift over in favour of the testatrix' sister and stepson only came into play in the event of Andrew Hunter's having predeceased her, and that there was no justification for seeking to extend it to a situation where Andrew Hunter had not predeceased her but had in fact survived her.  So that is another decision having great persuasive force which, like Re the Estate of Robertson, deceased, is directly in point.

Judge Weeks proceeded on the basis of necessary implication.  The decisive passage in his judgment was this:   
		"The actual event which occurred was not that Robert Jones predeceased his mother;  Robert Jones killed his mother, and I think in the circumstances of this case the right inference to draw from the wording of the will is that the testatrix, if asked, would have said `Of course, if he is to murder me, then my estate is to go to such of my nephews, Michael and Stephen Amplett, as shall be living at my death'.  This seems to me an a fortiori conclusion from the actual wording of the will." 

As I have said, I cannot agree with that view, involving as it does a degree of speculation which is not permissible in the construction of wills.  The event provided for by Mrs Jones is clear and certain and it did not occur.  Unless there is any other ground on which a different view can properly be taken, the gift over cannot take effect.  

Mr Meares, for the nephews, who did not appear below, has suggested that there is indeed such a ground based on public policy.  He submits that the forfeiture rule started as a rule of the common law which had not been fully developed by the time that the Forfeiture Act 1982 was enacted.  He says that it was capable of development in such a way that the hardship to the persons entitled under the gift over in a case such as this would be ameliorated by the courts on grounds of public policy.  He then says that, by the 1982 Act, the legislature has evinced an intention that the hardship to the killer should be capable of amelioration in proper circumstances.  From that he argues that the legislature either intended or would have countenanced a similar amelioration in favour of the persons entitled under the gift over.  

It seems to me that this argument, entirely novel, faces a number of insuperable objections.  First, there is no reason for supposing that the common law rule would have been capable of development in the way suggested by Mr Meares.  Testamentary dispositions cannot be rewritten on grounds of public policy.  Second, although it seems likely that the argument was not advanced in Hunter's Executors, Petitioners, it is in direct conflict with the Court of Session's view that there was no consideration of public policy which would support the testatrix' estate being distributed as if her husband had died.  Third, in the 1982 Act, while Parliament intended to ameliorate the hardship to the unlawful killer, there is no evidence of an intention to ameliorate hardship to anybody else.  Moreover, the method of amelioration is a discretion in the court to modify the forfeiture rule in certain circumstances.  The development of the common law rule as suggested by Mr Meares would involve no discretion at all.  The court would simply decree that the gift over should take effect.  It is impossible to see how it could ever be justified in taking such a course.  For these reasons I have no hesitation in rejecting Mr Meares' alternative argument.

I would allow Mr Perry's appeal and make a declaration in the terms of alternative (a) in the direction for the preliminary issue, i.e. in favour of an intestacy.  

LORD JUSTICE HENRY:     I agree.  

SIR PATRICK RUSSELL:     I also agree.  

Order:	appeal allowed;  declaration accordingly;  the costs of all parties to the appeal to be taxed, the first defendant on the indemnity basis, the plaintiff and the second and third defendants on the standard basis, and raised and retained or paid out of the estate in due course of administration;  legal aid taxation of the costs of the second and third defendants.