Assisted Suicide & the Forfeiture Rule

Frank Ward  died in June 2009 aged 76 as the result of a drug overdose. Frank was a widower, He had been the sole carer for his wife over a 20-year period while she had multiple sclerosis. Frank had expressed a firm desire that he didn’t want to suffer a prolonged illness or incapacity. His estate was valued at approximately $140,000.

In August 2007 Frank drafted a “home made” will, revoking a prior will of November 1999, appointing Mr Merin Nielsen as his executor, and sole beneficiary.

Frank and Merin had been friends for almost 20 years; when Frank suffered a stroke in 2007 Merin had assisted with Frank’s shopping and Banking. It was at this time that Frank had changed his Will and made Merin his Power of Attorney.

In June 2009 Frank paid for Merin to travel to Mexico to purchase the drug Pentobarbital and it was the ingestion of that drug which led to the death. Merin was charged with assisting Frank to commit suicide.

The case against Merin was that when he visited Frank after his return from Mexico it was likely that the Pentobarbital was handed to Frank; who took the substance later that day. Frank was found dead early that evening.

At trial it was accepted that Merin was not present when the substance was ingested, it was an independent decision freely entered into by Frank.

In February 2012 Merin was convicted of having assisted Frank to commit suicide. He was sentenced to three years imprisonment, serving a non parole period of six months.

The Court was asked if the forfeiture rule applied in this case. After consideration the Court held that a person who assists the suicide of someone else can not act as that person’s executor, or take an interest in his or her estate. The forfeiture rule is applied regardless that the motivation was to ease suffering or to have acted at the request of the deceased.

The Court was aware that this was the first Australian case of assisted suicide where the forfeiture rule has been applied.

Merin was convicted of assisting Frank to commit suicide, the “presence of acts or threats of violence” is not a prerequisite to the application of the forfeiture rule. It is also irrelevant that the person assisting the suicide did not intend, or lacked the motive, to benefit from the deceased’s estate.

As Merin’s “right” to act as executor arose from assisting Frank to commit suicide, he has forfeited the benefit he would otherwise take under the will, so that the estate should be administered as on an intestacy. Therefore the estate was shared by Frank’s surviving siblings, Albert and Yvonne, and, the children of his brother David who predeceased him.

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