Current law in Victoria
The Attorney-General has asked the Victorian Law Reform Commission (VLRC) to review the common law rule of forfeiture and make recommendations on the need for legislative or other reforms to clarify the application of the rule or replace the common law.
The law as it applies in Victoria is described by Justice Gillard in Re Estate of Soukup (1997) 97 A Crim R 103. In that case, the Victorian Supreme Court confirmed that the forfeiture rule prevents anyone who has killed unlawfully from inheriting or otherwise deriving a benefit from the death of their victim, unless they are found not guilty by reason of mental impairment.
The rule applies regardless of the individual circumstances of the case: the court may not take into account the moral culpability, motive or intention of the killer. It makes no distinction between murder and manslaughter, and nor does it differentiate between the many settings in which a homicide may occur. The killer forfeits any entitlement under the victim’s will or on intestacy, and is denied any rights arising as surviving co-owner of property that they and the victim may have owned as joint tenants.
Even if the person is acquitted in criminal proceedings, or is not prosecuted at all, the rule may apply if the court is satisfied, on the balance of probabilities, that the killing was unlawful.
Because the forfeiture rule is applied strictly, it can produce harsh results. The victim’s death may have been unintentional, unforeseen, an assisted suicide, the result of a suicide pact, a response to domestic violence or caused in other circumstances that could reduce the killer’s moral culpability. Nevertheless, the killer is deprived of entitlements that, morally, they may still deserve or which the victim may still have wished them to receive. The rule may also effectively disinherit the victim’s descendants, to whom the entitlements may have ultimately passed via the killer’s estate.
Courts in Victoria, other Australian jurisdictions and overseas have commented on the unfair consequences of applying the forfeiture rule. In some cases, the court declined to apply the rule, but this action was criticised in other cases as judicial legislation.
The response in the United Kingdom to controversy about the forfeiture rule was to legislate. The Forfeiture Act 1982 (UK) does not displace the common law rule, but allows the court to modify the effect of the rule where required by the justice of the case. The Australian Capital Territory and New South Wales subsequently enacted similar legislation—the Forfeiture Act 1991 (ACT) and the Forfeiture Act 1995 (NSW).
New South Wales has since amended its legislation to allow applications to the court to apply the forfeiture rule when the person is not guilty because of mental illness.
In contrast, New Zealand has introduced legislation that replaces the common law rule. The Succession (Homicide) Act 2007 (NZ) codifies the rule and excludes from its operation killings caused by negligent acts or omissions, infanticide, suicide pacts and assisted suicides.
Effect of the Rule
Once an interest in an estate or joint tenancy has been found to be subject to the forfeiture rule, the courts must consider how to otherwise dispose of that interest. The courts have taken a variety of approaches. They have distributed entitlements as if the killer predeceased the testator; they have determined that the property is held by the killer on constructive trust for an appropriate person or next of kin; they have applied intestacy rules to failed gifts; and they have interpreted substitutionary clauses to give effect to the testator’s intent. Joint tenancies have been treated by the courts as having been severed or as giving rise to a constructive trust over the victim’s share of the property to be held on trust for the benefit of the victim’s estate.
Following recent amendments to its forfeiture legislation, in the United Kingdom the estate is distributed as if the killer predeceased the victim.
The VLRC is seeking views about the operation of the forfeiture rule in practice and on options for reform. A consultation paper is available online, and submissions on the questions it raises are due by 28 April 2014.
The VLRC is to report its findings and recommendations by 15 September 2014.
To read or download the consultation paper, and for details about how to make a submission, please visit: www.lawreform.vic.gov.au.