Forfeiture rule applies to unlawful killing

Despite what you may see on American law and order television shows, in NSW and other Australian jurisdictions you cannot kill a person and then inherit from their estate. As RMB Lawyers Wills and Estates Lawyer EDEN-MONIQUE HULL EXPLAINS, this is known as the “forfeiture rule”.

Under the Forfeiture Act 1995, the NSW Government defines the forfeiture rule as “the unwritten rule of public policy that in certain circumstances precludes a person who has unlawfully killed another person from acquiring a benefit in consequence of the killing”. The definition of unlawful killing can extend to aiding, abetting, counselling or procuring a homicide and unlawfully aiding, abetting, counselling or procuring a suicide.

The forfeiture rule originated in England where the courts established a common law rule that stated that an offender, or anyone seeking to claim through the offender, cannot inherit from the estate of the person they killed because to allow the offender to do so would go against “public policy’ (moral or social rules).

One of the earliest cases that applied the forfeiture rule was the case of Cleaver v Mutual Reserve Fund Life Association [1892] where the wife murdered her husband, was convicted of murder, and then sought to claim the proceeds from her husband’s life insurance policy.

The insurer refused to pay the wife the proceeds of the life insurance on the basis that doing so would go against public policy. The wife filed an application in the court seeking that the proceeds be paid to her, but the court denied her application and held that the proceeds were to be paid to the other beneficiaries of the estate.

Over time, the courts have modified the forfeiture rule and there are now some exceptions to the rule. It has been held that if an offender murders a victim and the offender was suffering from a mental illness at the time of the murder, then the forfeiture rule may not apply.

In the case of Re Plaister; Perpetual Trustee Co v Crawshaw (1934) the court held that an offender who killed his partner and child could inherit from his partner’s estate because at the time of the offence he was suffering from insanity, delusions and did not know right from wrong.

The modification of the forfeiture rule by the court in Re Plaister; Perpetual Trustee Co v Crawshaw has now been codified by legislation in NSW by the Forfeiture Act 1995. Under the Act, a person who is seeking to claim or inherit from the estate of the deceased victim can make an application to the Supreme Court seeking to modify the rule. The Court may make an order that modifies the forfeiture rule if the Court is satisfied that justice requires such modification of the rule.

The case of Re Settree Estates [2018] is an example of a case where an offender made an application to the Supreme Court seeking to modify the forfeiture rule to enable him to receive approximately $1 million from his parents’ estate after he had killed them both. The Court modified the rule and provided the offender with $100,000 to be put into a trust for his maintenance because the offender was found to have a mental illness at the time of the killings.

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