Baden Clay & the Forfeiture Rule

Allison Baden-Clay’s father, Geoff Dickie, recently filed a formal application to the Queensland Supreme Court seeking a declaration his son-in-law Gerard Baden-Clay not be entitled to receive any financial benefit from her death.

In April 2012 Allison was reported missing by her husband Gerard. 10 days after she disappeared her body was found and the police investigated. Gerard was the prime suspect in her disappearance and was charged with her murder in June 2012.

Gerard and Allison prepared Wills appointing each other as sole executor and beneficiary. Gerard was appointed the sole executor and beneficiary of Allison’s 1997 will. It was reported that Allison’s estate consisted of two life insurance policies amounting to almost $800,000, and superannuation amounting to approximately $236,000

In July 2014, Gerard was found guilty of murdering his wife and given a life sentence for his crime in the Queensland Supreme Court. Following Gerard’s murder charge the Supreme Court gave Allison’s father temporary control of her estate which included her life insurance policies.

In December 2015, Gerard’s lawyers appealed the conviction arguing that he had unintentionally killed Allison during an argument. The Court of Appeal accepted the argument and the murder conviction was downgraded to manslaughter.

The Queensland Director of Public Prosecutions (DPP) appealed against the decision of the Court of Appeal to the High Court and the murder conviction was reinstated by the High Court in August last year, the murder conviction disqualifies Gerard from acting as the executor of Allison’s will, as well as receiving any financial payment from her estate as a beneficiary. This is what is referred to as the ‘forfeiture rule’.

The forfeiture rule would have applied even if his murder conviction was downgraded to manslaughter. The Court didn’t accept that the motive behind Allison’s murder was the financial benefit Gerard would receive from her estate. This was ultimately rejected by the Court and would, in any case, be deemed irrelevant by the Court under the forfeiture rule.

The forfeiture rule prevents a person from benefiting from their wrongful conduct. It would be unconscionable to allow a killer to enjoy an unjust enrichment. It applies ‘whether it be a case of murder or by manslaughter’ and ‘so as to exclude from benefit the criminal and all claiming under her, but not so as to exclude alternative or independent rights’.

In Australia only NSW and the ACT, have sought to modify the effects of the absolute forfeiture rule through legislation. All other Australian jurisdictions rely on the common law. However the common law test that has been applied prevents a criminal killer from taking directly the estate of their victim due to the fact that they would be profiting from killing another person.

Interestingly assisted suicide, or euthanasia, might attract a conviction of manslaughter, or murder, essentially disqualifying the killer from inheriting under the victims will. The motive and intention of the person who contributed to the death has been deemed by the Supreme Court of Queensland to be irrelevant when Courts have applied the forfeiture rule.

However recently the Victorian Court of Appeal held that ‘the nature of the particular crime determines the application of the principle’. Application of the forfeiture rule in cases of murder was considered ‘clear and uncontroversial’, such that the offender would always be precluded from benefiting. As to cases of manslaughter, does the criminal culpability of the offender require that he or she should not be entitled to take a benefit arising from the death?

In that matter following a long and often violent relationship the wife who had a history of anxiety, depression and was diagnosed as bipolar, killed her husband and was sentenced to seven years’ imprisonment. At issue was whether, as the sole beneficiary under her husband’s will, was prevented from taking her interest in her husband’s estate by reason of the forfeiture rule. On the facts, her criminal culpability was such that she was not entitled to ‘benefit from the death which she caused’ and the forfeiture rule applied.

Allison’s father successfully applied to remove Gerard as executor of Allison’s will as a result of the murder conviction. Allison’s father was made the sole administrator of the estate by the Supreme Court of Queensland in February. The grant was issued after Allison’s father filed an uncontested application for administration of her estate, including her life insurance and superannuation policies, in early February.

Gerard has been disqualified from receiving any benefit from his wife’s superannuation and life insurance policies, as well as inheriting from her estate under the will. Allison’s father Geoff has been appointed by the Supreme Court as the administrator of his late daughter’s $1 million dollar estate, which is set to be inherited by Allison’s three daughters.

The Court stated “Gerard Robert Baden-Clay is not entitled to obtain or receive any benefit he would otherwise obtain or receive arising from the death of the deceased.

The application was undefended and Gerard did not appear  noting that being convicted of Allison’s murder, he cannot profit from his crime.



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