3 Application of the forfeiture rule

Unlawful killings

  1. 3.1 The forfeiture rule applies to a person who unlawfully kills someone and stands to benefit as a result of their relationship with the victim.
  2. 3.2 An unlawful killing is a homicide that occurs in the absence of a valid defence. In Victoria, a valid defence is self-defence or duress.1
  3. 3.3 The forfeiture rule applies to all unlawful killings involving deliberate and intentional violence or threats of violence.2 In Victoria, it is uncertain whether the rule also applies to unlawful killings that result from an inadvertent, involuntary or negligent act.3

Unlawful killings in Victoria

  1. 3.4 Most unlawful killings in Victoria are carried out by someone known to the victim. According to the Australian Bureau of Statistics, 90 victims of homicide were recorded in Victoria in 2012. Of these, two out of three were killed by someone they knew.
    Thirteen were killed by their partner, and seven by a former partner.4
  2. 3.5 Table 1 shows the relationship between homicide victims and offenders in Victoria during 2011 and 2012, which are the last two years for which figures are available.
  3. 3.6 Table 1: Relationship of offender to homicide victim







Other family member






Other non-family member






Relationship not known







Source: Australian Bureau of Statistics, Recorded Crime—Victims, Australia, 2012, Cat No 4510.0.

  1. 3.7 The forfeiture rule is most likely to have applied where the victim was a family member.
  2. 3.8 Although the most recent figures released by Victoria Police are by financial year and are not directly comparable with those published by the Australian Bureau of Statistics, they provide greater detail about the range of homicide offences to which the forfeiture rule could apply. Table 2 shows the homicide offences recorded by Victoria Police in 2011–12 and 2012–13.5
  3. 3.9 Table 2: Homicide offences 2011–12 and 2012–13






Drive in dangerous manner causing death



Culpable driving causing death






Accident—fail to stop—death



Drive at dangerous speed causing death



Accessory after the fact to murder



Accident—fail to assist—death



Aid and abet suicide



Survivor suicide pact



Accessory after the fact to manslaughter







Source: Victoria Police,Crime Statistics 2012/13, 12.

  1. 3.10 Of the 178 offences recorded in 2012–13, 40 were attempted, conspiracy or incitement offences.

Coverage by the forfeiture rule

  1. 3.11 A broad range of acts can cause the unlawful killing of another. As the forfeiture rule is applied inflexibly, a premeditated murder carried out with the intention of obtaining a financial benefit and a suicide pact in which one of the parties survived would both attract the application of the forfeiture rule.
  2. 3.12 This section describes the range of acts to which the rule applies, or may apply.


  1. 3.13 The application of the forfeiture rule to murder is a well-established rule of public policy.6 Murder is the most serious of homicides and the maximum penalty in Victoria is life imprisonment.7 The killer has intentionally or recklessly and without lawful justification killed someone or has inflicted serious injury and their victim dies as a result.
    The community’s abhorrence of this offence is clear. The Commission does not propose to open debate about whether the rule as it applies to convicted murderers should be modified in any way.


  1. 3.14 An unlawful killing is manslaughter if, in the circumstances, the killer’s culpability is less than that required to constitute murder. The range of acts and circumstances that this offence can encompass is reflected in the range of penalties: from 20 years imprisonment to a fine.8
  2. 3.15 Manslaughter is not confined to unlawful killings resulting from deliberate acts. A person may also be responsible for the death of another due to a failure to exercise a duty of care or because of their reckless or dangerous acts or omissions that a reasonable person would have foreseen might cause harm to another. This failure might be so egregious as to amount to manslaughter. Examples of cases in Victoria where negligence has been considered manslaughter include the accidental discharge of a firearm due to inattentive handling;9 neglect of children or other vulnerable relatives by failing to care for them through leaving them unattended in motor vehicles;10 or a failure to assist an injured person.11
  3. 3.16 As discussed in Chapter 2, at common law, the forfeiture rule applies to manslaughter offences, at least where the offence was intentionally committed.12 In the United Kingdom, the forfeiture rule does not apply in manslaughter cases resulting from an involuntary, inadvertent or negligent act, which can include motor manslaughter, inadvertent or involuntary manslaughter or negligent manslaughter.
  4. 3.17 The position in Victoria is not as clear. Justice Gillard expressed the view in Estate of Soukup that, while the court was not required to decide whether the forfeiture rule should apply to an inadvertent or involuntary act, the English approach would be appropriate in the circumstances.13 However, in the Australian Capital Territory and New South Wales the application of the rule in these circumstances may not need to be decided as, even if there is doubt, the court can use its discretion to modify the effect of the rule.
  5. 3.18 Courts in the United States have often held that a conviction for a crime less than murder does not necessarily mean that the killer will be precluded from inheriting from the victim.14 Under the Uniform Probate Code, in order to attract the slayer rule, the killing must be felonious and intentional.15 A killing is felonious and intentional if it is ‘done with a mind bent on doing wrong’.16 To satisfy the ‘intentional’ requirement, the alleged killer must have ‘acted with an intent to kill’, which includes where they knew ‘to a substantial certainty’ that the killing would result from their conduct.17 The rule would not therefore be applied to cases of accidental manslaughter.18 However, courts have sometimes been prepared to apply the rule where it is not clear that the felonious and intentional requirement has been met.19

Deaths occurring because of negligent, reckless or dangerous acts or omissions

  1. 3.19 Other negligent, reckless or dangerous acts or omissions might result in alternative criminal charges such as culpable driving;20 dangerous driving causing death;21 or failure to control a dangerous dog.22 Generally, deaths resulting from such acts or omissions are unintended.
  2. 3.20 Some common law jurisdictions apply the rule rigidly in these circumstances. In New South Wales, there are indications that the court is prepared to apply the forfeiture rule even where the relevant act of homicide was inadvertent. In Straede v Eastwood,23 Mr Straede, who had pleaded guilty to dangerous driving causing death, applied to have the effect of the rule modified.His wife had been killed in a car accident when he was at the wheel and he had been sentenced to two years imprisonment. The question of whether or not the rule applied in his case was not in issue. Justice Palmer agreed to modify the effect of the rule, noting that there had been no suggestion that Mrs Straede’s death was premeditated or that Mr Straede sought to profit from it.24 However, due to the discretion under the NSW Act, the court did not need to consider whether the rule might not apply in the circumstances of the case once an application to modify the effect of the rule had been made.
  3. 3.21 Generally in the United States the slayer rule does not apply if the killing was reckless, accidental, or negligent.25 However, both Kentucky and the District of Columbia preclude killers from inheriting from their victims when their negligent wrongful conduct results in homicide.26 Also, there have been court decisions in Canada27 and South Africa28 that have held that the forfeiture rule will apply to someone who has negligently and unintentionally caused the death of another. In Ontario Municipal Employees Retirement Board v Young29 a woman caused the death of her husband in a motor vehicle accident after drinking at dinner to celebrate their wedding anniversary. Her husband had a terminal illness and she did not intend to cause him harm but the court held that the forfeiture rule applied to both intentional and non-intentional killings.
  4. 3.22 The NZ Act excludes negligent acts and omissions from the operation of the forfeiture rule.30 The New Zealand Law Commission recommended that they be excluded as a matter of policy. It reasoned that, in view of the unintended nature of the crime, allowing the unlawful killer to inherit is not likely to serve as an incentive for future such acts or omissions.31

Assisted suicides

  1. 3.23 While suicide is no longer a criminal offence,32 it is an offence in Victoria to incite another to commit suicide33 or to aid or abet another in the commission of a suicide.34 The consent of the victim is not a valid defence to assisting a suicide and the forfeiture rule will preclude the person who has assisted in the suicide from inheriting.
  2. 3.24 However, criminal penalties are often very different from those imposed for other offences that result in an unlawful killing. For example, in both R v Hood35 and R v Maxwell36 the court imposed wholly suspended sentences on offenders found guilty of assisting a suicide. In R v Hood, the deceased had expressed a wish to commit suicide to avoid ‘becoming a vegetable’ as a result of inoperable brain tumours; however, an autopsy revealed that the deceased had not had a brain tumour. The deceased, Mr Colley, had told multiple people he was going to commit suicide in order to die with dignity and organised a farewell party. Mr Hood was the deceased’s former partner who had continued to reside with him. He assisted Mr Colley to commit suicide by purchasing the drugs that he used to kill himself and remaining with him until he died.
    In R v Maxwell, Mr Maxwell had assisted his wife to commit suicide to relieve her suffering as a result of terminal cancer. The forfeiture rule would apply to prevent people in these circumstances from inheriting despite the minimal criminal culpability.
  3. 3.25 Assisting a suicide is a separate offence in New Zealand as well. In its review of the forfeiture rule, the New Zealand Law Commission considered that this offence does not warrant a bar to inheritance. The nature of an assisted suicide—in that it is the deceased’s choice to die—provides a clear distinction from murder.37 Often, those who assist a suicide are close to the deceased and motivated by compassion to end their suffering.
    It is therefore likely that in these circumstances, rather than wishing to disinherit a beneficiary who helped them to commit suicide, a deceased person would most likely appreciate their assistance and perhaps even want to reward them.38
  4. 3.26 The NZ Act, which codified and modified the forfeiture rule, expressly excludes assisted suicides from the operation of the rule.39 The Act defines assisted suicide as follows:

assisted suicide —
(a) means the killing of a person by another person directly or indirectly if, immediately before death, the deceased asked the other person to help them to commit suicide; but
(b) does not include a killing where the deceased formed the wish to commit suicide, or resolved to commit suicide, or acted on that wish or resolve, as a consequence of any form of persuasion by the other person.40

Suicide pacts

  1. 3.27 A suicide pact is entered into with the intention that none of the parties will survive. In Victoria it is an offence to incite another to commit suicide41 or to aid or abet another in the commission of a suicide.42 The survivor of a suicide pact who kills the deceased will be guilty of manslaughter.43 The forfeiture rule is applied to preclude those who commit these offences in pursuit of a suicide pact from inheriting from another member of that pact.44
  2. 3.28 Suicide pacts often occur in circumstances of great distress for the parties involved. In DPP v Rolfe,45 an 81-year-old man was convicted of manslaughter by suicide following an attempted joint suicide with his wife. His wife was going to be placed in an aged care home and they had wanted to avoid being separated. Both the husband and wife were found unconscious after attempting to gas themselves but only one of them was able to be saved. Mr Rolfe was later found to have been suffering severe psychiatric distress and depression at the time and received a non-custodial sentence.
  3. 3.29 The court in sentencing Mr Rolfe accepted that the proper function of sentencing was to deter people from the unlawful taking of life. The court also found that the principle of general deterrence was modified by Mr Rolfe’s psychiatric condition of major depression.
  4. 3.30 As the forfeiture rule applies to suicide pacts, persons such as Mr Rolfe would be unable to inherit. They could lose the home they may have jointly owned with the other member of the suicide pact and, depending on their relationship with other heirs, they might forfeit other assets.
  5. 3.31 The NZ Act excludes suicide pacts from the operation of the codified rule.46 In the United Kingdom, the effect of the rule was modified in Dunbar v Plant.47 In that case, the trial judge held that the defendant, who had a suicide pact with her fiancé, had illegally aided and abetted his suicide and that the forfeiture rule therefore applied to preclude her from succeeding to his interests and entitlements. On appeal, the Court of Appeal held that at common law the rule remained absolute and inflexible. However, the Court exercised its statutory discretion under the UK Act to modify the effect of the forfeiture rule and allow the survivor to inherit.

Aiding and abetting

  1. 3.32 A person who aids, abets, counsels or procures another to commit an unlawful killing may be tried or indicted as a principal offender.48 They will also be subject to the forfeiture rule, although this may be unclear to administrators and executors of estates. The United Kingdom, Australian Capital Territory and New South Wales have clarified this in their legislation.49


2 In Victoria, should the forfeiture rule be applied equally to all types of unlawful killing? If not:

  1. (a) Which types of killing should be excluded from the operation of the rule?
  2. (b) On what basis should they be excluded?


Unlawful killers

  1. 3.33 Just as there is a broad range of unlawful killings, so there is also wide variation between unlawful killers in terms of their motivations, intentions and circumstances.
  2. 3.34 An act or omission causing the death of another can be accompanied by an intent to kill or to cause bodily harm on the part of the killer or by a reckless disregard of the consequences. A killer may also have murderous intent but there may be mitigating circumstances such as diminished responsibility or they may be motivated by compassion to end the suffering of the deceased through a mercy killing.
  3. 3.35 There may be a need to take variables of this type into account when applying the forfeiture rule.

Moral culpability

  1. 3.36 A killer’s moral culpability means the degree of blameworthiness that can be attributed to their actions in committing the unlawful killing.
  2. 3.37 At common law the moral culpability of the killer has no effect on whether and how the forfeiture rule applies. As discussed in Chapter 2, there have been differing views on this issue. Strictly applying the rule where the level of moral culpability is low or in exceptional circumstances can create unjust results. Killers with lower moral culpability may be seen as being punished disproportionately harshly in comparison to unlawful killers who commit acts that generate a greater ‘sense of outrage’.50
  3. 3.38 For example, certain kinds of unlawful killings may be associated with lesser moral culpability on the part of the killer. These include killings that:
  • occur in the context of ongoing family violence
  • involve some form of reduced responsibility
  • are unintentional or motivated by compassion or distress, as might occur in assisted suicides, suicide pacts and mercy killings
  • are perpetrated by minors.
  1. 3.39 The level of moral culpability of the killer is a significant issue in applying the slayer rule in the United States, where most jurisdictions do not apply the rule unless the killing is intentional.
  2. 3.40 Courts in the United Kingdom, Australian Capital Territory and New South Wales may have regard to the moral culpability of the killer when considering applications to modify the effect of the forfeiture rule under their statutory schemes. One of the reasons that the NSW Act was introduced was to recognise the variation in moral culpability that can occur in unlawful killings and give the court sufficient discretion to make orders in the interests of justice.51
  3. 3.41 Courts in these jurisdictions have decided to modify the forfeiture rule in a range of cases,
    including where the killer suffered from ongoing family violence and the killing formed part of the response to that violence;52 and in cases where the killer suffered from severely diminished responsibility.53

Family violence

  1. 3.42 The law in Victoria recognises that unlawful killings which take place in the context of family violence may differ from other types of homicides. The Crimes (Homicide) Act 2005 (Vic) provides for an alternative verdict to murder in Victoria to apply to these situations. While defensive homicide is currently under review by the Department of Justice, the original intention of the law combined with s 9AH Crimes Act 1958 (Vic) recognises that homicides occurring in the context of ongoing family violence fall within a special category of homicides. Nevertheless, if a person kills their abuser in response to ongoing family violence where that response does not amount to self-defence, the forfeiture rule applies.54
  2. 3.43 The Tasmanian Women’s Legal Service has expressed concern about the application of the forfeiture rule to women who kill violent partners. In its response to the Tasmania Law Institute’s issues paper on the forfeiture rule, the Women’s Legal Service pointed out that women who intend to kill a violent partner to escape their abuse are often found to have diminished responsibility.55
  3. 3.44 In Victoria, women have been found guilty of the manslaughter of an abusive partner in cases where:
  • A woman stabbed her partner in the course of a violent dispute, and received a wholly suspended sentence.56
  • A woman disarmed her partner and then shot him as he moved toward her during a violent dispute, and received a five-year custodial sentence.57
  • A woman experienced 50 years of domestic violence from her alcoholic partner and killed him in fear that he was about to attack her with an axe, and received a
    non-custodial sentence.58
  1. 3.45 Where courts have a statutory power to modify the effect of the rule, they have done so in family violence cases. In the English case of Re K Deceased a woman accidentally killed the husband who assaulted her. The forfeiture rule was found to apply because she was guilty of a deliberate threat of violence and the death, although unintended, was the consequence of her conduct.59 The court then exercised its statutory discretion to modify the effect of the rule.
  2. 3.46 The ACT Act and the NSW Act were introduced in order to ameliorate the harsh effects of the forfeiture rule in situations where the killer has less moral culpability for the unlawful killing, in particular when unlawful killings have occurred in response to ongoing family violence.60 The Hon. Terry Connolly, Attorney-General, in the Second Reading speech said:

There have been enormous injustices where… a person who clearly has been a victim of enormous long-term domestic violence, has picked up a rifle that was aimed originally at them, taken a life, been convicted of manslaughter, and effectively lost the matrimonial home. That, clearly, is unjust, and this is, to that extent, a very significant reform.61

  1. 3.47 However, New Zealand did not provide an exception in the codified forfeiture rule for killings occurring in the context of family violence. The New Zealand Law Commission considered the issue when recommending legislative reform but concluded that self-defence is available as a complete defence to a homicide and someone who is experiencing family violence has no more right to kill than any other person in circumstances other than self-defence.62

Reduced responsibility

  1. 3.48 That a killer was suffering from a substantial impairment or abnormality of mind is a partial defence to murder in New South Wales by reducing what would otherwise be murder to manslaughter,63 although this defence is not available in Victoria. The killer’s capacity to understand events, to judge whether their actions were right or wrong, or to control themselves at the time of the act or omission causing death, must have been substantially impaired by an abnormality of mind arising from an underlying condition so as to warrant their liability for murder to be reduced to manslaughter.64 Prior to 1998,
    the partial defence of diminished responsibility, in which the abnormality of the mind could be transitory in nature, was available. Although this mental abnormality may reduce the degree of moral culpability, it does not affect the operation of the forfeiture rule.65
  2. 3.49 In Clift v Clift,66 an intellectually disabled woman suffering from a depressive illness and delusions murdered her aunt and then killed herself. Medical evidence showed that she knew what she was doing, and knew that it was wrong, even though her mental condition meant she was unable to refrain from killing her aunt. As the killer was found
    to be suffering from diminished responsibility rather than mental impairment, the forfeiture rule was applied.
  3. 3.50 The effect of the forfeiture rule has been modified by courts under the NSW Act in cases of diminished responsibility. For example, in R v R,67an application was successfully made on behalf of a 13-year-old boy who had killed his mother and sister and had diminished responsibility as a result of the physical, sexual and emotional abuse of his father.
    His application was supported by his half-brother and grandmother.
  4. 3.51 In Leneghan-Britton v Taylor,68 the effect of the rule was modified where the killer had diminished responsibility due to an inability to cope with responsibilities as a carer for her grandmother but the killing was neither premeditated nor motivated by profit.
    However, the killer had also attempted to cover up the crime by misleading police and was sentenced to 11 years imprisonment, which suggests the offence was serious in scale.69
  5. 3.52 The decision has been criticised as being a very liberal application of the court’s discretionary power that did not justify the modification of the rule.70
    The court considered a range of factors of questionable relevance, including a lack of profit motive, which might exist in many murder cases, and the deceased’s impending death from cancer.
  6. 3.53 Another crime in which the unlawful killer can experience some diminution of responsibility is infanticide. Infanticide is an alternative verdict for murder in Victoria and occurs when a woman causes the death of her child within two years of giving birth in circumstances that would otherwise constitute murder.71 In order to be guilty of the offence of infanticide the killer must be disturbed because of a failure to recover from the effect of giving birth or must suffer a disorder consequent to giving birth.72 The forfeiture rule would apply to preclude women who have committed infanticide from inheriting any property held on trust for the deceased infant.
  7. 3.54 The forfeiture rule is not applied in cases of infanticide under the NZ Act.73 The New Zealand Law Commission considered infanticide to be sufficiently analogous to an acquittal on the ground of insanity.74
  8. 3.55 However, if, as the New Zealand Law Commission suggests, infanticide is analogous to a killing in which there is an acquittal on the ground of mental impairment, then other types of unlawful killings involving a diminution in the killer’s responsibility may also be analogous to this crime. There may therefore be a broader range of circumstances in which an unlawful killing might occur that are equally worthy of exception from the operation of the forfeiture rule.


  1. 3.56 Minors are subject to the forfeiture rule, and so those who kill cannot inherit from their victims.75 However, minors are not regarded as having the same level of criminal responsibility or culpability as adult offenders in the criminal justice system.
  2. 3.57 Children in Victoria are subject to the special protections of the Children, Youth and Families Act 2005 (Vic). The general principles that underpin this legislative scheme include:
  • The best interests of the child must always be paramount.76
  • The need to protect a child from harm, to protect their rights and promote their development must always be considered.77
  • Consideration must be given to the effects of cumulative patterns of harm on a child’s development.78
  1. 3.58 The application of the forfeiture rule to minors could be regarded as inconsistent with these principles and policies, particularly in the younger age range of minors.
  2. 3.59 In R v R,79 the court modified the effect of the forfeiture rule on the basis of the diminished responsibility of the killer. However, the case involved a 13-year-old boy who killed his mother and sister while in a state of diminished responsibility resulting from physical, sexual and emotional abuse by his father. The ability of the minor R to process and deal with his situation is likely to have been affected by his age. Children in these circumstances could not ordinarily be held to have the same level of responsibility as an adult. Any application of the forfeiture rule to a child such as R might deprive the child of an inheritance that could be used to provide them with the assistance and care they require to develop and overcome the cumulative effects of the harm they may have suffered.
  3. 3.60 Minors are nevertheless still held responsible for their crimes and many minors who commit unlawful killings are aware that what they are doing is wrong. A minor could kill with the objective of obtaining a financial benefit if the forfeiture rule did not apply to all minors who commit unlawful killings.


  1. 3.61 Not all unlawful killings result from an act of violence or reckless disregard for the safety of others. Some, such as assisted suicides or mercy killings, are motivated by compassion and love for the victim and to relieve their suffering. The application of the forfeiture rule in these cases can sometimes produce harsh results.
  2. 3.62 A mercy killing can be distinguished from assisted suicide in that the killer takes a more direct role in the killing. In Re Dellow’s Will Trusts,80the killer suffered from depression as a result of her husband’s helplessness following a number of strokes.She had turned on the gas taps on the kitchen stove and remained in the kitchen with her husband until they both died. The court found she had unlawfully killed her husband and was not entitled to his estate, but said:

It is in these circumstances that I find it somewhat repellent to have to hold that the wife was guilty of a crime which ranks amongst the most serious that can possibly be committed. The law in its concern for the protection of human life must be strong and, indeed, severe, but I cannot refrain from saying that, in its bearing on such a case as this, it is clumsy, crude and indeed, nowadays, if the case is regarded sympathetically, somewhat uncivilised… This is clearly a case for compassion rather than condemnation.81

  1. 3.63 Criminal prosecutions of mercy killings are rare, although people have been prosecuted in Victoria. In R v Klinkermann, an elderly man was convicted of attempting to kill his wife, who had a significant disability and was dying, although no longer able to communicate that she wanted to end her life. Justice King referred to the issue of euthanasia and commented that the law protects human life and places it into a special category. It is protected at all costs.82
  2. 3.64 In Wisconsin, if a victim’s will expressly says that the slayer rule does not apply, then the killer will be able to inherit.83 This law may have been intended to enable will-makers to provide for beneficiaries who have participated in a mercy killing with their consent and knowledge.84
  3. 3.65 However, the motivation of a mercy killer is often difficult to prove, as is the consent of the victim. An exception for mercy killing might enable unlawful killers to use this as an excuse for their crime in order to retain property or succession entitlements. Mercy killing is not an exception to the forfeiture rule under the NZ Act, because the motive of ending the victim’s suffering is not a justification for murder or manslaughter under the New Zealand criminal law, and because of the importance of protecting human life.85 In the parliamentary debates on the Bill, concern was expressed that there would be cases involving mercy killings that did not amount to assisted suicide, and would thus inappropriately attract the forfeiture rule.86

Other factors to consider

  1. 3.66 A range of other factors might be considered relevant to the question of whether an unlawful killer should be able to inherit from their victim. These might include the forgiveness of the deceased; the impact of the loss of inheritance on the killer; or whether the killer was found to be criminally responsible.

Forgiveness by victim

  1. 3.67 In some circumstances the victim might not have wanted the killer to be disinherited. It is unclear whether the forfeiture rule applies if a person who is fatally injured makes a will after the attack that causes their death, knowingly granting a benefit to the killer.87 The single authority supporting the proposition that a killer may be forgiven by their victim in order to inherit was expressed as part of a minority judgment in Canada.88 In Lundy v Lundy89 a man who was his wife’s beneficiary under her will was convicted of her manslaughter and had transferred ownership of the property to his brother. The court held that the killer was not able to inherit as a result of the forfeiture rule. There was no evidence of the existence of any interval between wounding and death in which forgiveness may have occurred,90 although Justice Taschereau in his minority judgment stated that:

[I]t cannot be denied, I presume, that a will by any one in favour of the person who killed them is good, if made in the interval between the wound and death.91

  1. 3.68 The French and Louisiana Civil Codes provide that persons convicted of attempting to kill the will-maker are presumed to be unworthy heirs who will be precluded from inheriting—except if the deceased, in full knowledge of these facts, expresses their intent in the form of a will for that person to inherit.92 The French Civil Code also provides that a person convicted of killing the will-maker may be forgiven.93
  2. 3.69 Giving effect to testamentary intent is a fundamental principle of succession law; however, there are many issues with proof of testamentary intent in these circumstances. The New Zealand Law Commission did not recommend an exclusion for these circumstances, as it is always open to substituted beneficiaries to restore to the killer property to which he or she would otherwise have been entitled and these cases appear too rare to merit an exclusion provision.94

Impact on the killer

  1. 3.70 The loss of property entitlements may have a particularly negative impact on certain unlawful killers. In Jans v Public Trustee,95the court decided to modify the effect of the forfeiture rule under the NSW Act. The court took into account the fact that the killer, who was deemed to have diminished responsibility at the time of the killing, would have nowhere to live if he were disinherited. The application was supported by family members.

Killer not convicted

  1. 3.71 The forfeiture rule may be applied to a person who has been acquitted in criminal proceedings, or has not been prosecuted at all, if it is proved to the court, on the balance of probabilities, that the person unlawfully killed the deceased.96 Proceedings on the right of someone to inherit or take the benefit of property entitlements in circumstances where the forfeiture rule would apply are not about punishing a killer for their crime but about enforcing a rule of public policy that a person should not benefit from their crime. These proceedings will therefore not violate the rule against double jeopardy, which prevents an accused from being retried for the same crime without compelling new evidence.
  2. 3.72 There are many circumstances in which it may be just to apply the forfeiture rule to a person who has not been convicted of the offence. The Tasmania Law Reform Institute observed that it could be just to apply the forfeiture rule where a killer has not been prosecuted because they also died or because crucial evidence was not admissible in
    the criminal trial.97
  3. 3.73 However, the application of the forfeiture rule to a person who has been acquitted of the offence is inconsistent with other legislation in Victoria. Under the Confiscation Act 1997 (Vic) an application may be made to confiscate property that was derived as a result of a homicide offence where the killer has been convicted,98 or deemed to have been convicted.99
  4. 3.74 The application of the forfeiture rule to a person who has been acquitted may be contrasted with the exception for persons found not guilty by reason of mental impairment. If the reason for that exception is that the person is not criminally responsible for a killing, then that reasoning could also extend to persons acquitted of an offence.

Indirect benefit to the killer

  1. 3.75 In some circumstances it is possible that an unlawful killer can obtain a benefit by inheriting from the heir of their victim. For example, in a recent American case the wife of a man who killed a will-maker inherited from the estate of the victim despite suggestions that she had prior knowledge of the crime.100 In the much criticised case of Ex parte Steenkamp and Steenkamp101 in South Africa, a couple left a will benefitting their daughter and her children. They were subsequently killed by their son-in-law, and later one of their grandchildren who had received a benefit under the will died in infancy. The court held that the killer was eligible to inherit from his child.
  2. 3.76 However, in Oregon an unlawful killer is not only precluded from inheriting from their victim, but also from an heir of their victim unless that heir specifically includes the killer
    in a will or other instrument executed after the victim’s death.102


3 Should the forfeiture rule apply equally to all unlawful killers? If not:

  1. (a) Should the courts be able to consider moral culpability?
  2. (b) What other factors should be taken into account?



Exception when not guilty because of mental impairment

  1. 3.77 In most jurisdictions, the common law forfeiture rule does not apply to people who are found to be not guilty of an unlawful killing due to mental impairment.103 This is consistent with other Victorian legislation including the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA) and the Confiscation Act 1997 (Vic).104
  2. 3.78 In New South Wales an interested person can apply to the Supreme Court for an order that the forfeiture rule apply to someone who has been found not guilty by reason of mental illness as if they were found guilty of murder.105

Reasons for the exception

  1. 3.79 The exception is a generally accepted principle that safeguards the rights of persons with a mental impairment. The court in Re Plaister106 inferred that an unlawful killer who committed murder-suicide, killing his wife and daughter and then himself, had a mental illness. The court found that public policy did not require that the forfeiture rule be applied to prevent the killer from inheriting in these circumstances.107
  2. 3.80 Whether a person who has been found not guilty of homicide because of their mental impairment committed the act is not in issue. However, because of their impairment they did not form the necessary mental intent that needs to be proved in order for them to be held criminally responsible for committing the offence. They did not have the capacity to commit the offence and are not morally culpable for their actions.108
  3. 3.81 Exempting persons found not guilty of an unlawful killing by reason of their mental impairment ensures that they will not be held accountable for actions for which they are not responsible.
  4. 3.82 However, this exception may be inconsistent with the absolute and inflexible nature of the forfeiture rule in other circumstances in which the killer is not criminally responsible or where the killing was unintentional.109 Where the rule is applied strictly, the courts do not examine the motive of the killer and instead rely on the fact of the killing to apply the forfeiture rule.
  5. 3.83 It could be seen as anomalous that a person who is found not guilty in a criminal trial may have the rule applied against them, unless they were not guilty because of mental impairment.110 On the other hand, a person who has been acquitted on the criminal standard of proof—beyond reasonable doubt—may nevertheless be found in civil proceedings on the balance of probabilities to have committed the homicide. If so, the forfeiture rule should prevent any benefits flowing to the killer as a result. A person who is acquitted because of mental impairment has committed the homicide but, based on the M’Naghten rules discussed below, has been determined to have been not responsible.

Mental impairment in Victoria

  1. 3.84 In a 2010 study on persons found not guilty by reason of mental impairment, almost half (42.5 per cent) of the offences committed by the 146 participants were committed against an immediate family member, with 16.5 per cent of the victims being a person’s spouse or partner.111 Under the current law, the forfeiture rule would not preclude any of them from inheriting.
  2. 3.85 An analysis of the socio-demographic, psychiatric and criminological characteristics of the 146 participants of the study suggests the typical person found not guilty by reason of mental impairment is unemployed, unskilled and has not completed secondary schooling.112 Many people with mental impairment will be likely to have ongoing care needs. If the forfeiture rule were to be applied to them, they may be more likely to require state support to meet these needs.

Requirements of mental impairment

  1. 3.86 The requirements of proving mental impairment in Victoria are onerous and it is unlikely to be an incentive for people to commit an unlawful killing.While it is open to the court to infer that a perpetrator must have been mentally ill,113 it is difficult in practice to prove that a person has a mental impairment.114
  2. 3.87 The CMIA replaced the common law defence of insanity and deals with the process and test for determining whether an accused person is not guilty of an offence because of mental impairment, which includes mental illness. Where an unlawful killer’s impairment at the time of the unlawful killing affects their capacity to commit the offence, they may be exempted from the usual criminal process and diverted to a specialised process.115
    This exemption from the criminal process is founded on the principle that a person should not be held criminally responsible and punished for an offence if at the time the offence occurred they did not have the capacity to commit the offence and were not morally blameworthy for their actions because of a mental impairment.116
  3. 3.88 The CMIA seeks to achieve a therapeutic aim by promoting an increased understanding and tolerance of mental illness that can give rise to a mental impairment.117 Exempting persons found not guilty of an unlawful killing from the forfeiture rule is consistent with this aim.
  4. 3.89 However, mental impairment is difficult to demonstrate and applies only to a specific class of offenders. The CMIA has adopted the common law test for establishing the defence of mental impairment, known as the M’Naghten Rules. In order to establish the defence it must be proven that at the time of committing the causative act they were labouring under such a defect of reason from disease of the mind as to not know the nature and quality of the act they were doing, or if they did know, then they must not have known that the act was wrong.118 Therefore, where an unlawful killer is conscious that an act is one they should not be doing, then despite any mental condition they might be suffering, they will be held criminally responsible and will be subject to the application of the forfeiture rule.
  5. 3.90 For example, in Clift v Clift,119an intellectually disabled woman suffering from a depressive illness and delusions murdered her aunt and then killed herself. Medical evidence showed that she knew what she was doing, and knew that it was wrong, even though her mental condition was such that she was unable to refrain from killing her aunt, and the forfeiture rule applied.
  6. 3.91 In addition to being difficult to demonstrate, a finding of not guilty by reason of mental impairment has serious consequences and is not treated lightly by the courts. The supervision process under the CMIA can be onerous and last for a significant period. The length of a supervision order is always indefinite and can last the rest of a person’s life.
    It involves continual assessment and review of the person’s progress under the order.
    The length of time that people are ultimately detained can vary and research has shown that detention under the CMIA in Victoria has ranged from three months to 36 years.120

New South Wales reforms

  1. 3.92 In 2005 the NSW Act was amended by Schedule 4 of the Confiscation of Proceeds of Crime Amendment Act 2005 (NSW), which also amended the Confiscation of Proceeds of Crime Act 1989 (NSW), the Civil Liability Act 2002 (NSW), and the Crimes Act 1900 (NSW). These amendments were intended to:

improve the processes involved in confiscating criminal assets, broaden the scope of existing laws, make prosecutions easier, create new offences of money laundering, prevent mentally ill offenders from misusing civil damages paid to them, and prevent mentally ill murderers from profiting from their crime by applying the forfeiture rule.121

  1. 3.93 At the time, the reforms were contentious and were opposed strongly within Parliament and by organisations such as the Council for Civil Liberties and the International Commission of Jurists.122 The Legislation Review Committee formed the view that ‘treating a person who has been found not guilty of a crime as if they had been convicted of that crime is a trespass on their fundamental rights’.123
  2. 3.94 In Re Fitter; Public Trustee v Fitter,124 a woman was murdered by her husband and two children, one of whom was a minor. The husband and son were found to have paranoid schizophrenia and the daughter was found to be suffering a psychotic episode. All participated in the murder, believing that the victim was trying to harm them in some way, and were found not guilty by reason of mental illness. The court used its power under section 11(3) of the NSW Act to apply the forfeiture rule against them after the court considered their conduct in the circumstances. The court was particularly influenced by a lack of remorse for the killing and the absence of blameworthy conduct of the deceased prior to her murder. Other factors the courts have taken into consideration when deciding to apply the forfeiture rule upon an application under section 11(3) of the NSW Act include a prior history of violent behaviour.125

Other jurisdictions

  1. 3.95 Most common law jurisdictions also allow for the exception of persons found not guilty by reason of mental impairment.126 However, while courts in the United States also generally allow a killer to inherit from their victim in these circumstances,127 whether there should be a mental impairment exception to the slayer rule is still a live issue in a number of jurisdictions there.128 In a number of cases where the killer was not prosecuted, or was acquitted by reason of insanity, the courts have nonetheless held that the killer was barred from inheriting from their victim.129 In Ohio, legislation prohibits accused killers found not guilty by reason of insanity from gaining from the deceased’s estate;130 however, they can file a complaint in probate court to declare their right to benefit from the death.131
  2. 3.96 In Indiana, a person is automatically made a constructive trustee of property that they receive as a result of their victim’s death if they are found ‘guilty but mentally ill’ of murder, causing suicide or voluntary manslaughter.132 If the alleged slayer has been found ‘not responsible because of insanity at the time of the crime’, another person can launch a civil action to have the former declared a constructive trustee of the property.133 This will be declared by the court if ‘by a preponderance of the evidence it is determined that the person killed or caused the suicide of the individual’.134


4 Should the absolute exception to the forfeiture rule for persons found not guilty by reason of mental impairment be retained? If not:

  1. (a) In what circumstances should the exception not apply?
  2. (b) Should the court have a discretion to apply the rule in the circumstances of the case?



Main menu

Back to top