In movies and TV shows, we often see characters murder their family members (or at least try to) in order to benefit from their estate, or receive life insurance policy proceeds.
Despite this being a common plot point for entertainment
The law is extremely rigid in its approach when a person kills another person and that person is a beneficiary under a will or pursuant to the rules of intestacy. If you kill someone, you will not receive any benefit from that person’s estate. You forfeit your entitlement in their estate, as you killed them. This is known as the forfeiture rule.
The forfeiture rule
The forfeiture rule applies to any entitlement in an estate and it extends to non-estate assets, such as property held as joint tenants, as well as superannuation and life insurance benefits. If you kill someone in order to accelerate your entitlement in an estate either (i.e. if you are a remainder beneficiary of a life estate and you kill the life tenant), you will not receive that to which you might have otherwise been entitled.
There are two exceptions to the forfeiture rule. The first, is where the killing is judged to be caused by a mental illness and the accused is deemed not fit to plead. Secondly where the victim of an attempted murder executes or republishes a will gifting a benefit to the perpetrator. As you would expect, this is very rare event.
Moral culpability in the death is irrelevant.
In the matter of Troja v Troja (1994) 33 NSWLR 269, 299, a wife killed her husband and was convicted of manslaughter due to diminished responsibility. She was the victim of domestic violence. She was the primary beneficiary of the will, then their children and ultimately if she or her children did not survive, the victim’s mother. The killer and her victim did not have children and she sought that the common law rule not apply because:
1. She had no motive to kill and therefore benefit from his estate;
2. She had contributed to the wealth that was now going to her mother-in-law; and
3. The mother-in-law would be unjustly enriched.
The Court decided that the forfeiture rule would apply and the fact she was convicted of manslaughter and not murder was irrelevant. As she killed her husband, she would not benefit from his estate.
The Courts take the forfeiture rule seriously. It is the common law that absolute forfeiture applies in all Australian jurisdictions apart from NSW and ACT where the Courts have the discretion not to impose the rule if the circumstances of the killing would permit some leniency. The Troja case is significant because it prompted the legislation in NSW, the Forfeiture Act 1995 , which affords the Court the discretion to avoid application of the forfeiture rule. In the Troja case the convicted wife.
In essence, the plot points of TV shows and movies when it comes to the law….aren’t always reliable!
By Julia Tutt – Senior Associate
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