The Forfeiture Rule

The forfeiture rule is an unwritten rule of public policy that prohibits a party who has unlawfully killed another person from acquiring a benefit by reason of the killing. The Forfeiture Act governs the operation of the forfeiture rule in NSW.

In short, the forfeiture rule prevents a person who has caused the death of a testator from receiving an inheritance under the testator’s will or from bringing an application for family provision against the testator’s estate, even where they meet the eligibility criteria.

The forfeiture rule is absolute in cases of murder. Further, the Court may apply the forfeiture rule where a person is found not guilty of murder because of mental illness if justice requires the rule to be applied. However, where the death resulted from manslaughter (i.e., murder without intent), a person may apply to the Court to modify the effect of the forfeiture rule if justice requires that the rule be modified.

In determining whether justice requires the application or modification of the rule, the Court will consider:

  • The conduct of the offender;
  • The conduct of the deceased person;
  • The effect of the application of the rule; and
  • Any other material matters.

Some Recent Cases

The plaintiff sought orders that the forfeiture rule applied to her brother (the defendant) in respect of the estates of their parents. The defendant shot his parents dead after a minor domestic dispute over a $40 bottle of wine. However, the defendant was found not guilty by reason of mental illness.

The Court held that even though the defendant had been found not guilty because of mental illness, the ‘pre-mediated, violent and merciless’ nature of the killing and the absence of remorse justified the application of the forfeiture rule.

However, the Court recognised that applying the forfeiture rule would leave the defendant totally dependent on the government, and consequently made a conditional forfeiture order under which the defendant would receive $100,000 held on trust by the NSW Trustee.

The plaintiff, who was the deceased’s de facto husband, applied to the Court for family provision. The deceased was murdered by her nephew, a beneficiary under her will.

Here, the Court applied the forfeiture rule to deprive the deceased’s nephew of his share and made orders that the plaintiff receive additional provision from the estate and that the nephew’s share be distributed between the deceased’s other nieces and nephews.

The defendant killed his mother, stepfather and brother, believing that they were possessed by Satan. The defendant was found not guilty of murder by reason of mental illness. The plaintiffs, who were the defendant’s half-brothers, sought an order applying the forfeiture rule to the defendant.

Although the defendant was found not guilty, the Court held that the forfeiture rule should be applied to deprive the defendant of the entirety of his inheritance. In reaching this decision, the Court had regard to the defendant’s future needs and the defendant’s mental illness but found that the public abhorrence of the killings outweighed those factors.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.