The Forfeiture Rule is a common law rule that prevents a person who has unlawfully killed another person from inheriting from the victim’s estate or obtaining another financial benefit from the death.
It originated in the case of Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, the English Court of Appeal held that a woman who had been convicted of murdering her husband was not entitled to the proceeds of her husband’s life insurance policy.
In Helton v Allen (1940) 63 CLR 691 the High Court of Australia adopted an absolute forfeiture rule. Consequently, today the common law rule applies regardless of the motivations of the killer, the nature of the killing or any moral justification behind the killing
In Troja v Troja, a majority of the NSW Court of Appeal took the following approach:
“all felonious killings are contrary to public policy and hence, one would assume, unconscionable. Indeed, there is something a trifle comic in the spectacle of Equity judges sorting felonious killings into conscionable and unconscionable piles’.
Troja v Troja (1994) 33 NSWLR 269 at 299.
In NSW, the Forfeiture Act 1995 (NSW) modified the Forfeiture Rule giving the Supreme Court of NSW discretion where “it is satisfied that justice requires the effect of the rule to be modified“, concerning:
- the conduct of the offender,
- the conduct of the deceased person,
- the effect of the application of the rule on the offender or any other person, and
- such other matters as appear to the Court to be material
Background
Sharon and John Edwards owned three parcels of real estate in NSW as joint tenants at the date of her death in March 2915. The properties were worth $1.15 million at Sharon’s death. John was found guilty of murdering Sharon and sentenced to imprisonment. The conviction was maintained on appeal and no application was made for special leave to appeal to the High Court of Australia.
Sharon’s will appointed John as executor and left her estate to her three children equally. John renounced his appointment as executor. Sharon’s estate was worth $791 plus any interest in the three parcels of real estate.
In NSW, a right of survivorship is often present in joint tenancy arrangements, if one tenant dies, the surviving tenant/s are automatically entitled to the interest of any joint tenant predeceasing them, despite any contrary intention in their will or estate
Section 66G of the Conveyancing Act can be used in the event of a conflict between co-owners to force a sale of the property. Section 66 empowers the court to decide to appoint a trustee of the property to hold the property on statutory trust for sale or partition (partition involves division of property according to contributions of each co-owner) depending on whether an application for sale or partition is made.
The decision
In Edwards v Edwards [2023] NSWSC 1067 the Court determined that under the forfeiture rule, John was precluded from inheriting on survivorship. The Court was satisfied on the balance of probabilities that the defendant unlawfully killed the deceased on or about 14–15 March 2015 by murder and so find.
First, the defendant’s certificate of conviction, which was tendered on this application, is admissible under s 178 of the Evidence Act 1995 (NSW) and establishes that the defendant was convicted of the deceased’s murder. As observed in Helton v Allen by Dixon, Evatt and McTiernan JJ, a certificate of conviction is admissible as an estoppel against a party to civil proceedings: Helsham v Blackwood (1851) 11 C.B. 111 at 121.
Second, the judgment of the Court of Criminal Appeal unanimously dismissed the defendant’s appeal on all four grounds raised, which included the ground that the verdict of murder was unreasonable and could not be supported having regard to the evidence. In considering that ground, the judgment discloses a very careful and extensive consideration of the evidence against the defendant in support of the verdict of murder.
Third, the defendant has not lodged a further appeal to the High Court of Australia.
Fourth, the defendant appeared at the hearing before me and did not oppose the making of the orders sought by the plaintiff, having stated at the outset of the hearing, “I don’t think I’ve got a leg to stand on”
Thus, in this case, the Court was satisfied that the forfeiture rule operates to prevent the defendant from taking the benefit of his wrongful act.
Applying the rule of forfeiture in this situation, the result is that while the defendant was recognised at law as entitled to be the sole registered proprietor of the Properties by right of survivorship that benefit does not accrue to the defendant and he holds a half interest in each of the Properties upon trust for the deceased’s estate in equal shares and the deceased’s estate is to be regarded as the owner in equity of the undivided half share in the Properties.
The plaintiff, as the administrator of the deceased’s estate, is entitled to the consequential relief he seeks for orders for the appointment of trustees for the sale of the Properties according to s 66G of the Conveyancing Act.