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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.

The Forfeiture Rule (WA)


The Supreme Court of Western Australia recently passed down a decision confirming the authority of the forfeiture rule. This common law principle asserts that a person cannot receive benefits from causing the death of another person. This article explains the application of the forfeiture rule in WA and outlines how the rule was implemented in the case of Public Trustee (WA) – v- Mack [2017].

When Is The Forfeiture Rule Applied?

The High Court of Australia first recognised the forfeiture rule in Australia in Helton v Allen (1940) as the principle that someone should not “slay [his or her] benefactor” and “take their bounty”. In practice, this means that a person cannot unlawfully cause a person’s death and then benefit under their will, intestacy provisions, or another death benefit.

The rule also ensures that an heir cannot kill another heir in order to secure a larger portion from a deceased estate. Historically, Australian courts have applied the rule not only when the benefit is obvious and direct, but also when the benefit is less easily discernable. For instance, the forfeiture rule will still apply if a family member of the perpetrator acquired advantage from the death.

Burden Of Proof and the forfeiture rule

The Supreme Court will apply the forfeiture rule if an individual has been found guilty of a wrongful death, whether as the result of murder, manslaughter or criminal negligence. It must be noted that the court can also apply the forfeiture rule in the absence of a criminal conviction, as long as there is sufficient evidence to meet the lower burden of proof in a civil hearing.

Other states

The forfeiture rule is applied in WA as common law precedent, as it is not codified into legislation. In other states, such as NSW, courts are given greater latitude when assessing whether the rule should be applied.

This assessment depends on the conduct of the perpetrator and the deceased, how the rule will impact on each party, and other relevant issues.

Conversely, in WA the court has no latitude to decide whether to apply the forfeiture rule if someone is found criminally liable for the death.

Distribution Of A Deceased Estate

When an executor of a deceased estate is faced with a situation that may involve the forfeiture rule, it is prudent for him or her to apply to the court for judicial approval to implement the rule.

Case Study of the forfeiture rule

In Public Trustee (WA) – v- Mack [2017] the Supreme Court convicted the defendant of the killing of his mother in 2012. The victim died intestate and the court found that the perpetrator would not receive the usual portion for a child of an intestate parent.

The victim’s other son, the half brother of the convicted killer, inherited the entirety of the victim’s estate. However, the defendant’s half brother also passed away intestate two years later, leaving no children or a spouse to inherit his estate. Under the intestacy provisions in WA, the defendant was in a prime position to inherit from his half-brother’s estate.

Having found that the wrongdoer could not benefit directly from the murder of his mother, the court was then asked to examine whether he could benefit indirectly from his criminal actions by inheriting from his half-brother. The Public Trustee, as the administrator of the estate, brought a motion before the court for clarification of whether the forfeiture rule applied to this case seeking directions according to Order 58 of the Rules of the Supreme Court 1971 and s45 of the Administration Act 1903.

The court considered whether the defendant could inherit from this estate given that a majority of the assets were from the victim’s estate and were only available in the intestate estate because of the defendant’s actions.

The court found there was no direct Australian precedent for whether the forfeiture rule should apply to this case, and so gave consideration to overseas precedent. Cases from the United States suggested that a defendant should not benefit, even indirectly, from their unlawful actions. The court agreed that intuitively, it is a logical extension of the forfeiture rule for a convicted murder to not benefit indirectly as a consequence of the crime.

The court decided to apply the forfeiture rule in this case as little time had passed since the inheritance had passed to the half-brother’s estate and there was no difficulty in identifying which parts of the estate derived from his mother’s estate. Therefore, the court ordered that no part of the deceased’s estate that was derived from the estate of the defendant’s victim should be distributed to the defendant.

In WA, when someone unlawfully causes the death of another person, they cannot benefit under of the forfeiture rule. At Armstrong Legal, the contested wills team can provide instruction on the forfeiture rule and how it may be applied to a case in WA. Please call 1300 038 223 or make an appointment to discuss the legal implications of this rule, or for answers to any other legal questions.

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