Australia: Forfeiture rule: why you cannot kill your parents and then inherit their estate

A NSW woman is campaigning to change the law so that her brother who killed their parents cannot inherit half their estate.

The brother was found not guilty of the killing for mental health reasons. The woman fears that the verdict leaves him open to inheriting half their parents' estate.

So, does the law really say that someone who kills their parents or spouse can inherit their money?

Law designed to prevent killers benefiting from their crime

Under our common law, a person who kills another is prevented from benefiting from the crime. This is known as the forfeiture rule.

The effect of the rule is that an offender can't take an inheritance from their victim's estate and so one cannot murder one's parents or spouse and still expect to inherit. However, the rule does not apply in circumstances where the person who kills another is found not guilty by reason of mental illness.

This exception to the rule developed because the community is not ordinarily taken to be outraged by a person who is so affected by mental illness as to have lost the insight into his or her actions.

Having said this, the Forfeiture Act 1995 (NSW) gives the Supreme Court discretion to apply the forfeiture rule as if such an offender has been found guilty of murder, where justice requires it.

Who can apply for a forfeiture application order?

Section 11 of the Act provides that any interested person may apply for a forfeiture application order. Under this section, in determining whether justice requires the forfeiture rule be applied, the court must have regard to the conduct of the offender, the conduct of the deceased person, the impact of the rule on the offender and other persons, and other matters that may be material.

Only four cases have been decided by the Supreme Court under Section 11 so far, and in all of those cases the court ordered the forfeiture rule to apply. The killers were ruled ineligible to inherit from the estates, even though they had been found not guilty by reason of mental illness. (See Public Trustee v Fitter [2005] NSWSC 1188, Guler v NSW Trustee and Guardian [2012] NSWSC 1369, Hill v Hill [2013] NSWSC 524 and Estate of Raul Novosadek [2016] NSWSC 554.)

Common features of cases where forfeiture rule was applied

The common factors in the cases finding in favour of the rule being applied appear to be the unprovoked nature of the attacks, the offender's voluntary conduct leading up to the killing, a lack of contrition and a prior history of violent behaviour.

So, a person who kills another but is found not guilty by reason of mental illness is still entitled to inherit from the victim's estate, unless a forfeiture application order is sought and then the outcome is a matter of judicial discretion.

Forfeiture rule not necessarily appropriate in all situations

When the Forfeiture Act was introduced, the government considered it was important that discretion be exercised, recognising that there are situations where it is appropriate for the rule to apply and others where to do so would produce injustice.

The NSW woman is fighting her case in the Supreme Court. Her petition on the website Change.org seeks to change the wording from "not guilty of murder by reason of mental illness" to "guilty of murder by reason of mental illness", and to have a criminal conviction recorded.

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