What happens if someone kills another in order to enjoy their inheritance a little earlier?
It’s very likely that a lengthy prison sentence will follow a conviction for murder or manslaughter – but what about the money or property that the killer is entitled to inherit under the will?
Since about a third of all homicides are committed by family members, this can be a very real question.
The law generally does not allow a person to profit from their crime; indeed, the ‘Forfeiture Rule’ states that “a man shall not slay his benefactor and thereby take his bounty.”
But not all cases are as straightforward as the scheming killer doing away with a relative or spouse to get their hands on the cash.
There are cases of negligence and recklessness, including where a loved-one is killed in a collision, or through assisted suicide, or even as a result of a prank gone wrong.
For a long time, the Forfeiture Rule applied to all unlawful killings, including negligent driving occasioning death and manslaughter.
But public attitudes have softened over time, and so has the application of the Forfeiture Rule in NSW.
In 1984, a woman who killed her abusive partner in circumstances of extreme provocation was allowed to inherit his estate. This was because her level of culpability was found to be low.
But the very next year, in the case of Troja v Troja, the NSW Court of Appeal reversed this progression and reaffirmed the inflexible rule.
It reasoned that all unlawful killings are unconscionable and against public policy, and that all of them should therefore be subject to the Forfeiture Rule.
That finding ultimately led the NSW parliament to amend the law.
The Forfeiture Act
The common law in NSW has now been modified by the Forfeiture Act (NSW) 1995.
Section 5 of the Act gives the Supreme Court power to modify the effect of the Forfeiture Rule if the court is satisfied that this is in the interests of justice.
When determining the interests of justice, the court will look at:
- The conduct of the offender;
- The conduct of the deceased person;
- The effect of the application of the rule on the offender or anyone else; and
- Any other matter that appears to be relevant.
The purpose of this law was to prevent the unfair application of the rule; including where an abused spouse kills their abuser, in cases of assisted suicide, suicide pacts where one spouse survives and culpable driving.
A person who is found ‘not guilty’ of manslaughter due to mental illness may benefit from the provision – unless someone else with a stake in the deceased’s property lays a claim. Such a stakeholder can apply for the Forfeiture Rule to operate just as if the mentally ill person had been convicted of murder.
Not all parts of Australia have legislation that softens the Forfeiture Rule.
For example, the inflexible rule still applies in Victoria; despite the Victorian Law Reform Commission noting that its blanket application can lead to injustice.
What are your thoughts: should the rule apply to all unlawful killings, or is a more flexible approach better?