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The Forfeiture Rule (Qld)

When someone causes the death of another person in Queensland, common law precedent provides that the perpetrator cannot benefit from the death. This is part of a broader legal maxim that no one should benefit from his or her own criminal act. In terms of inheritance, this is known as the forfeiture rule. This article explains the role of the forfeiture rule in Queensland, with reference to recent case law.

Types Of Entitlement

The forfeiture rule applies to any property or right that a perpetrator acquires as a result of another person’s death. This can relate to a gift in a will, an inheritance under joint tenancy, an appointment to be the executor of a will or an entitlement to a superannuation death benefit or insurance proceeds. The rule applies not only when the offender directly benefits from their wrongful act (such as when a murderer is a beneficiary of their victim’s will), but also when there is a discernable benefit that flows from the wrongful act (such as when a murderer’s spouse or child benefits from the victim’s will).

When Does The Forfeiture Rule Apply?

In order for the Supreme Court of Queensland to apply the forfeiture rule, the prospective beneficiary will usually have to have been convicted of the manslaughter or murder of the deceased. In Queensland, the forfeiture rule also applies to instances when someone is convicted of helping another person to commit suicide. In at least one instance, an appointed executor (and beneficiary) who helped a testator commit suicide was precluded from inheriting under that testator’s will.

There is also a possibility that the court will apply the forfeiture rule even without a criminal conviction. If a criminal case has not established the guilt of an individual beyond a reasonable doubt, the court can, during a civil trial to resolve a will dispute, apply the forfeiture rule if there is sufficient evidence to establish his or her guilt on the balance of probability. As such, the court can strip a beneficiary of his or her right to inherit from a deceased estate even if the beneficiary is not subject to criminal punishment.

In Queensland, the court implements the forfeiture rule based on common law precedent rather than according to statutory regulations. Under the common law the court has no discretion to adapt the application of the rule because of moral culpability or selfless motivation. Thus a child who helps their terminally ill parent to commit suicide may be disqualified from inheriting their parent’s estate, even if that was the clear wish of the testator.

How Is The Forfeiture Rule Applied Elsewhere?

In other jurisdictions, such as the Australian Capital Territory and New South Wales, the rule has been codified into statute, partially to allow courts to assess the moral culpability of the person responsible for the death. The courts in these states and territories will evaluate the conduct of the deceased and the perpetrator, the impact of the implementation of the forfeiture rule, and any other factor that the courts consider relevant.

Guidance For An Executor

When a person dies because of the actions of a family member or dependant, he or she is often a beneficiary of the deceased’s will or entitled under intestacy rules. In that case, the executor of the estate or administrator must consider whether this is an instance when the forfeiture rule would apply to disqualify the perpetrator from inheriting from the deceased estate. If the rule may apply, the executor should ask the Supreme Court of Queensland for a judicial ruling confirming that redistribution is warranted. It is sensible for the executor to obtain this order to indemnify him or herself against the perpetrator making a future legal claim.

Case Study

In Pike v Pike [2015], the Supreme Court considered whether the forfeiture rule should be applied to the inheritance of a man convicted and imprisoned for the manslaughter of his mother. The court identified the son’s motive as greed, as his mother was killed soon after changing her will to make him the executor and sole beneficiary of her estate. The applicant in the case was the victim’s other son.

The court found that the forfeiture rule applied and the testamentary instruction contained in the will must be overruled because the respondent was criminally responsible for the death of the testator. As such, the respondent was not entitled to assume responsibility for the estate as executor, and his bequest would be diverted to the victim’s other son.

In Queensland, when someone takes the life of another person, the forfeiture rule dictates that the perpetrator cannot profit either directly or indirectly.  The contested wills team at Armstrong Legal can provide advice on the forfeiture rule and how it may be implemented in Queensland. Please call 1300 038 223 or get in touch with our team for further information or legal representation in a forfeiture rule court matter.

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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