The testator appointed Marsden sole executor and beneficiary, but if Marsden should die within the testator’s lifetime his (M’s) adopted daughter should be the sole executrix and beneficiary. M was found guilty of the murder of the testator. The adopted daughter propounded the will and claimed a declaration that M be deemed to have died within the testator’s lifetime.
Held: It was long recognised that a person who feloniously killed another could not take any benefit under the victim’s will. The question therefore arose whether M 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.’ and the testator’s estate devolved as on his intestacy.
Judges:
Justice Karminski
Citations:
(1963) 107 Sol Jo 318
Jurisdiction:
England and Wales
Cited by:
Cited – In re Heather Elizabeth Jones Deceased, Jones v Midland Bank Trust Company Limited; Perry and Others CA 17-Apr-1997
The will gave the residue of the estate to the testatrix’s son, but if he predeceased her to her nephews. The son was convicted of her murder. The court had to decide whether the gift fell into residue, when the son requested the court to disapply . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 21 June 2022; Ref: scu.211375