In New South Wales the Forfeiture Act 1995 (NSW) allows the Court to modify the effect of the forfeiture rule in a situation where a person is convicted of unlawfully killing a person if it believes that justice demands it.
In March 2006 Graeme Wylie, aged 71 died of a drug overdose. His de facto partner Shirley Justins had placed an open bottle of Nembutal and a glass within Graeme’s reach; He poured the Nembutal into the glass and drank it, knowing that it would kill him.
Graeme had been diagnosed with Alzheimer’s disease in 2003. Following his diagnosis there had been a swift decline in his health. Graeme forgot family & friends names, appeared disoriented as to time and place, and he became depressed.
Graeme expressed a wish to die and had attempted suicide on two occasions. He had been friends with Caren Jenning for 30 years and she had also become a close friend of Shirley. Caren was a euthanasia advocate. In late 2005, Graeme discussed the idea of legal euthanasia with the Shirley and Caren; and applied to Dignitas, a Swiss organisation that provides assistance to people wishing to end their own lives. His application was rejected following concerns about his mental capacity.
Shortly thereafter, Caren offered to travel to Mexico to buy Nembutal for Shirley to give to Graeme.In early 2006, Graeme was admitted to hospital following a failed suicide attempt. At this time Caren and Graeme agreed that she would fly to Mexico to purchase Nembutal.
In early March 2006 although he could not read and had very little conversation, Graeme attended a solicitor with Shirley and a new Will was drafted leaving the majority of the estate to her. Graeme’s previous Will dated 1995 bequeathed half of his estate to Shirley and 25% to each of his daughters.
When Graeme signed the will on 15 March 2006, Shirley knew that he lacked testamentary capacity, but did not inform the solicitor.
On 18 March 2006, Caren returned from Mexico, and gave the phial of nembutal to Shirley. On 22 March 2006, Graeme took the drug and died later that morning.
Carla was charged with importing Nembutal and of being an accessory to murder ( this was later changed to accessory to manslaughter); or alternatively of aiding and abetting suicide. Caren suffered from cancer and committed suicide by taking Nembutal prior to being sentenced.
Shirley was found guilty of manslaughter by gross criminal negligence in June 2008. She was sentenced to periodic detention, with a non-parole period of 22 months. On appeal the offence was reduced to one of aid and abet suicide.
Graeme’s daughters contested his Will claiming that he lacked mental capacity. The Court agreed that after Graeme was released from hospital in March 2006 he lacked the capacity to change his Will. Importantly Shirley failed to tell Graeme’s solicitor about his Alzheimer’s relying upon ‘a doctor to get a report which would validate the changed will.’
Shirley and Graeme’s children agreed to divide the estate closer to the lines of the 1995 Will in a settlement that was ratified in the Supreme Court. The Court ruled that the 2006 will was invalid because Graeme lacked testamentary capacity at the time of making it, and his destruction of the 1995 will at the same time was similarly flawed.
Under the forfeiture rule a person convicted of unlawfully killing is not allowed to benefit from the death of their victim. In New South Wales and the ACT legislation has been passed giving Courts the discretion to modify the rule. Unlike the matter discussed yesterday(which occurred in Queensland) notwithstanding Shirley’s conviction it appears that discretion was exercised under the Forfeiture Act 1995 (NSW).