Re Edwards; State Trustees Ltd v Edwards (Re Edwards) is a recent decision of the Supreme Court of Victoria which concerned the distribution of an Estate where the deceased had died at the hands of his wife.

Gadens represented the deceased's daughter and successfully argued that the forfeiture rule in Victoria should be strictly applied and a "gift over" clause in a Will should be read literally; with the effect that an individual who has pleaded guilty to defensive homicide be prevented from obtaining a benefit under their victim's Estate and the Estate then being distributed on intestacy.


The deceased married Mrs Jemma Edwards (Mrs Edwards) in 1998. Their marriage was characterised by violence and threats by the deceased towards Mrs Edwards. This culminated in an altercation on 18 January 2011, during which Mrs Edwards killed the deceased. In the resulting criminal trial, Mrs Edwards pleaded guilty to one count of defensive homicide.

The Deceased's Will

The deceased's last Will (Will) directed that his entire Estate be distributed to Mrs Edwards. The Will further provided that if Mrs Edwards predeceased him, then a "gift over" clause would operate so that his Estate would be distributed to Mrs Edwards' mother and the Peter MacCallum Cancer Institute. The Will specifically excluded the deceased's daughter from his previous marriage.

The Forfeiture Rule

In determining how the deceased's Estate was to be distributed, the Court considered the nature and application of the forfeiture rule, which "prevents a killer from taking a benefit brought about as a direct result of that killing".

Firstly, the question before the Court was whether or not there is a discretion to apply the forfeiture rule or if it is an inflexible and absolute rule of law. Secondly, if the Court determined that it had a discretion to apply the forfeiture rule, whether or not it should then take into account public policy and the circumstances in which the deceased was killed (in this case, where it was argued that there was low moral culpability in the offending).

Submissions made on behalf of Mrs Edwards focused on the fact that Victorian authorities are divided on this issue and that this is the first case before the Court concerning a person who is guilty of defensive homicide. Conversely, Gadens argued that the forfeiture rule is inflexible and absolute and does not depend on Mrs Edwards' moral culpability.

Her Honour determined that the Court has no discretion as to whether or not to apply the forfeiture rule or to grant relief from the forfeiture rule. Accordingly, the Court ruled that Mrs Edwards was prevented from obtaining an entitlement to the deceased's estate.

Will the "Gift Over" Clause Still Apply?

The Court was then required to consider whether or not it would be appropriate to distribute the estate to Mrs Edwards' mother and the Peter MacCallum Cancer Institute (under the "gift over" provisions in the Will), or, alternatively, if the deceased's Estate should fall on intestacy (and be distributed to his next of kin).

Her Honour reflected on the general rule that a "gift over" clause in a Will that is based on a contingency, will not apply unless that exact contingency occurs (in this case, that Mrs Edwards predeceased the deceased). As the exact contingency did not occur, Her Honour considered whether or not the deceased would have intended for the "gift over" clause to apply in the event that he was killed by his wife.

The Court found that the "gift over" provision in the Will was intended to only apply in circumstances where Mrs Edwards predeceased the deceased and that it could not be extended to apply in circumstances where she had killed the deceased.

Next-of-Kin Entitled to the Estate

Notwithstanding that the deceased had omitted his daughter from the Will, the Court ordered that the deceased's Estate be distributed to her, as his surviving next of kin (after Mrs Edwards).