CAN A MURDERER BENEFIT FROM THE ESTATE OF THE VICTIM? THE FORFEITURE RULE IN PROBATE CASES

Date: Mar 01, 2013
Document Type: Article

A person convicted of a crime is not generally prohibited from benefitting under a will. However under the Forfeiture Rule, a murderer cannot benefit under the will or intestacy of the victim nor will the murderer be granted letters of administration.

The Forfeiture Rule is a complex body of rules identifying the level of culpability required, evidentiary and procedural issues and the types of rights and benefits liable to be forfeited.

The principles flowing from the Forfeiture Rule have been regulated by the passing in NSW of the Forfeiture Act 1995. In that Act the Forfeiture Rule is defined as “the unwritten rule of public policy that in certain circumstances preclude a person who has unlawfully killed another person from acquiring a benefit in consequence of the killing.”

Proceedings under the Forfeiture Act are commenced by summons in the Equity Division of the Supreme Court.

Any interested person may make an application to the Supreme Court for an order modifying the effect of the Forfeiture Rule.

An interested person is defined as:

(a) an offender,

(b) the executor or administrator of the estate of a deceased person,

(c) a beneficiary under the will of a deceased person or a person who is entitled to any estate or interest on the intestacy of a deceased person,

(d) a person claiming through an offender,

(e) any other person who has a special interest in the outcome of an application for a forfeiture modification order.

The Supreme Court has power to modify the effect of the Forfeiture Rule and in doing so has regard to :

(a) the conduct of the offender

(b) the conduct of the deceased person

(c) the effect of the application of the rule on the offender or any other person

(d) such other matters as appear to the court to be material.

CMN acted in a matter for the child of a murder victim. The victim was a parent who left his/her substantial estate by will equally to our client another person who was subsequently charged with the parent’s murder and pleaded guilty to manslaughter by reason of diminished responsibility.

We filed an application on our client’s behalf that the whole of the estate should go to our client by application of the Forfeiture Rule. The application was opposed but was successful. Orders were made that the whole of the parent’s estate be paid to our client.

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