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The Forfeiture Rule (NSW)

The forfeiture rule is a common law principle that provides that when a person is criminally responsible for the death of another person, they forfeit the right to inherit from the person’s deceased estate. Essentially, as a matter of public policy, a person cannot personally benefit (or indirectly benefit) from killing another person. This article defines the forfeiture rule and describes a recent case study before the Supreme Court of New South Wales.

What Is The Forfeiture Rule?

In New South Wales, the Forfeiture Act 1995 precludes a person from benefiting after causing the death of another person. This means that a person cannot benefit from the will of their victim, or through intestacy rules. It also means that one beneficiary of a will cannot kill another beneficiary and receive a greater share of the estate. The Supreme Court will apply the forfeiture rule if a person has been criminally convicted of the wrongful death of the testator or fellow beneficiary. However, the court will apply the forfeiture rule even when there was insufficient evidence to satisfy the criminal burden of proof beyond a reasonable doubt. This is because a hearing on the forfeiture rule is a civil proceeding, where the burden of proof is on the balance of probabilities.

The court considers several factors when assessing whether to apply the forfeiture rule, including:

  • The conduct of the deceased;
  • The conduct of the perpetrator;
  • The prospective impact of the forfeiture rule on the perpetrator and others; and
  • Any other matter that the court considers relevant.

The forfeiture rule applies not only when the perpetrator would otherwise receive a direct benefit (for example, they are a beneficiary of the deceased’s will), but also when someone close to the perpetrator would benefit (for example, the child of the perpetrator is a beneficiary of the deceased’s will).

What Impact Does Mental Illness Have On The Forfeiture Rule?

Section 11 of the Forfeiture Act sets out the factors that apply to those cases where a perpetrator is found not guilty of killing by reason of mental illness. The court is empowered under this provision to consider whether it is just to apply the rule as if the perpetrator had been found guilty.

What Should The Executor Do?

Occasionally, a person dies at the hands of a family member or dependent. When this occurs, the executor of the estate needs to consider whether the forfeiture rule applies to any inheritance or entitlement due to the perpetrator. In the event that it does apply, the executor will have to redistribute the assets of the estate to the other beneficiaries of the will. It is prudent for the executor to seek an order from the Supreme Court of NSW to clarify the relevance of the forfeiture rule and to endorse the redistribution. This indemnifies the executor against a later claim from the perpetrator or claimants against the estate.

In Re Settree Estates, Robinson v Settree [2018], the Supreme Court considered the case of a son who killed his parents after a trivial argument. The son was found not guilty by reason of mental illness at trial but there was still a question as to whether the forfeiture rule would apply to his inheritance. Under the terms of his parents’ wills, the son was due to inherit a half share of a $2M estate. The other beneficiary of the estate, the couple’s daughter, was also the executor of the will and brought an application before the court for the forfeiture of her brother’s inheritance. The court considered the statutory provisions relating to a perpetrator who is found not guilty by reason of mental illness.

The court noted that there was an element of premeditation in the perpetrator’s conduct, as the son admitted that he wanted to kill his parents and was aware that he would benefit from this act. The son also had a history of domestic violence and drug and alcohol abuse. In relation to the conduct of the victims, the court found that neither victim provoked the attacks.

The court then focused on the impact of the forfeiture rule on the perpetrator and other parties. The son’s children disclaimed any interest in inheriting from their grandparent’s estate. The court noted that the application of the rule would deprive the son of a million-dollar inheritance, leaving him dependent on social security benefits, whilst the daughter would inherit the whole estate.

The court acknowledged that there was strong public feeling over the murders, and made a conditional forfeiture order that the son receive $100,000 held in trust, with the balance of the estate redistributed to the daughter.

Modification of the Forfeiture Rule

The Supreme Court of NSW has the discretion to modify the operation of the forfeiture rule. For example, if a person committed an unlawful killing after being the victim of continuous domestic violence, the court has the power to determine that despite the criminal conviction, public policy would not be served by an application of the forfeiture rule.

The court modified the forfeiture rule in a recent case before the court. In the case of Wang v Estate of Wang; Lu by his Tutor Fang v Lu [2021], the Supreme Court of NSW considered whether to apply the forfeiture rule to a case where a husband was convicted of the wrongful death of his wife due to dangerous driving. The husband was sentenced to two years for the unlawful death of his wife. Under the Succession Act 2006, the husband was entitled to inherit the entirety of his intestate wife’s estate, but the deceased’s minor son asked the court to apply the forfeiture rule to the husband’s inheritance.

The court considered the conduct of the perpetrator and determined that while the husband had caused the death of his wife, it was an accident. The deceased estate was also modest and the husband had contributed financially to his wife’s assets. In this case, the court ordered a modification of the forfeiture rule to entitle the husband to inherit the whole estate, thereby allowing the husband to negotiate a settlement with his son’s guardian.

When someone unlawfully kills another person, the forfeiture rule can prevent the perpetrator from directly or indirectly inheriting property from the victim.

The solicitors at Armstrong Legal can answer any questions you have about inheritances. Please call 1300 038 223 to talk to our solicitors without delay. Contact our contested wills team if you need any advice on this matter or legal representation at a hearing on the forfeiture rule.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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