Should a murderer be allowed to be a beneficiary?

In Victoria the law prevents a person who has unlawfully killed another person from benefiting under the deceased person’s will.  This is called the Forfeiture Rule.  An exception applies where the killer is found not guilty by reason of mental impairment.

The above law is not stated in any Statute but is the law as was laid down over the years by courts.  It was in a 1997 Victorian Supreme Court decision.

It is hardly a surprising rule in one sense but as can happen with some strict rules it can produce some outcomes which might be harsh.

Once the rule applies its consequences cannot vary based on the circumstances.  In other words, once it is established that there has been a murder, the murderer cannot receive a benefit regardless of the circumstances.  For instance, if a person kills another who has abused and tormented him or her for a considerable number of years, the rule will apply and prevent the killer from benefitting from the estate of the victim.

There is also uncertainty about the scope of the rule.

It is not clear whether it applies to every manslaughter case.  Examples would be death resulting from a suicide pact or an assisted suicide. 

There is also uncertainty in the law about what should happen to the share of an estate given to the perpetrator of the crime where the Forfeiture Rule applies.  In the United Kingdom the estate is distributed as if the perpetrator of the crime predeceased the will maker.  Often this will mean that the perpetrator’s children will receive the share that would otherwise have gone to the perpetrator.  This seems a reasonable outcome given that those children are innocent.  In Victoria we have no equivalent law leaving uncertainty in this regard.

The Victorian Law Reform Commission has recently investigated the operation of the Forfeiture Rule and recommended that legislation be passed which, amongst other things, clarifies the operation of the rule, allows the offenders children to inherit a share of the estate, determine what should happen to a forfeited gift and looks at whether courts should have some discretion in applying the rule.

Stay tuned for more developments in this area.

For more information please contact:

Justin Hartnett
Principal
Harwood Andrews 
T: 03 5225 5220
E: jhartnett@harwoodandrews.com.au

Andrew Robson
Principal
Harwood Andrews
T: 03 5329 6920
E: arobson@harwoodandrews.com.au

Jenny Orchard
Principal
Harwood Andrews
T: 03 5430 3888
E: jorchard@harwoodandrews.com.au