The Forfeiture Rule prevents individuals from profiting from wrongdoing. Specifically, it bars anyone who unlawfully kills another person from benefiting financially from the victim’s death—whether through inheritance, insurance payouts, or other related gains. The Forfeiture Act 1995 defines an “interested person” in applying the rule, including the offender, the estate executor, beneficiaries, and others with a vested interest. Considering the circumstances and relationships involved, the Supreme Court retains discretion to modify the rule’s impact.
The English Court of Appeal articulated the forfeiture rule in Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147. Florence Maybrick, convicted of poisoning her husband, was deemed ineligible to claim the benefits from the deceased’s life insurance policy. Lord Esher MR emphasised that public policy prevents anyone responsible for the insured’s death, or those claiming through them, from receiving the money. Fry LJ concurred that a just legal system cannot recognise rights derived from a criminal act.
“It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from a crime of that person.”
Cleaver v Mutual Reserve Fund Life Association [1892]1QB147 at 156.
Re: Hall [1914] P 1 extended the rule’s application to cover murder and manslaughter that the principle could only be expressed in the wide form
It is that a man should not slay his benefactor and thereby take his bounty; and I cannot understand why the distinction should be drawn between the rule of public policy where the criminality consists in murder and the rule where the criminality consists in manslaughter
Hamilton LJ [1914] P1 at P7
In legal terms, the nature of public policy is broad and includes the fundamental principles, rules, and doctrines deemed vital for the welfare of society and the safeguarding of public interests. Re Tucker [1920] NSWStRp 100; (1920) 21 SR (NSW) 175, 181 described the forfeiture rule as chaotic and arbitrary.
Common law has expanded the forfeiture rule to include:
- Deaths resulting from dangerous driving (Straede v Eastwood [2003] NSWSC 280);
- Suicide pacts, where the survivor benefits from the death (Permanent Trustee Co v Freedom from Hunger Campaign (1991) 25 NSWLR 140);
- Assisting or encouraging suicide, which constitutes an indictable offence under s 31C of the Crimes Act 1900 (NSW) (Dunbar v Plant [1998] Ch 412 at 437);
- Motor vehicle deaths, where the driver intended to harm themselves or others—but not where death resulted solely from negligence (Australian Aviation Underwriting Pty Ltd v Henry (1988) 12 NSWLR 121).
The rule overrides numerous legal entitlements—including statutory inheritance, contracts, property rights, and wills—making its uncertain application particularly problematic. The forfeiture rules effect on indirect inheritance, such as benefits passed through third parties, adds further complexity to the administration of the deceased estate.
The High Court of Australia first applied the forfeiture rule in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 709, discussing that the earliest instance of the rule can be traced to The Amicable Society for a Perpetual Life Assurance Office v Bolland (1830) 4 Bligh NS 194; 5 ER 70, (commonly known as Fauntleroy’s case) Fauntleroy worked at his father’s bank, for seven years before becoming a partner and taking full control. In 1824, the bank collapsed, leading to his arrest for forging signatures to access trust funds, with accusations of embezzling £250,000.
Fauntleroy was tried at the Old Bailey and confessed but asserted the funds were for the bank’s debts. Found guilty, he was sentenced to death by hanging, becoming one of the last to be executed for forgery. The insurance company successfully denied a claim related to a life insurance policy. The Lord Chancellor considered whether the policy would have been valid if it had covered the specific risk that occurred, namely, death due to execution for a felony; such a contract would be deemed void on grounds of public policy.
Debate continues about the implications of Helton v Allen (1940) 63 CLR 691, 709 (Dixon, Evatt, and McTiernan JJ). The Court’s fundamental reasoning concerning the rule is valid and aligns with public policy, as killers should not benefit from their crimes. It provides that anyone unlawfully causing another’s death is barred from benefiting from that action, including claims under Wills, intestate distributions, jointly owned property, life insurance policies, and statutory pensions. Additionally, the perpetrator cannot claim under family provision laws.
However, the forfeiture rule’s implementation and reach raise debates and uncertainties, illustrated by the conflicting views of appellate courts in New South Wales,
that 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,
and Victoria’s Court of Appeal criticised the NSW Court of Appeal’s interpretation in Troja v Troja as “plainly wrong.” (see Re: Edwards [2014]; Edwards v State Trustees Ltd [2016] VSCA 28). A wife pleaded guilty to defensive homicide, accepting that she intended to kill or seriously injure her husband and that her actions were disproportionate to any threat her husband posed.
Troja v Troja led to the Forfeiture Act (1995) (NSW) establishing a procedure for seeking “forfeiture modification orders” within twelve months of the deceased death or a delayed application granting the NSW Supreme Court the discretion to adjust, when justice demands, the application of the Forfeiture Rule (for example, in cases where the individual responsible for the unlawful killing had endured prolonged and severe domestic violence from the victim).
Of particular concern is the application of the forfeiture rules in cases of unlawful killings where the moral blame is less clear-cut, potentially resulting in unjust outcomes. The survivors of a suicide pact, assisted suicide, infanticide, euthanasia, or mercy killings, especially if the offender has diminished responsibility. Strict enforcement of the forfeiture rule in these complex situations has been criticised as excessively harsh, inconsistent, and illogical, as it conflicts with its intended public policy rationale.
Public Trustee (WA) – v- Mack [2017]
Brent Donald Mack was convicted of his mother’s murder in November 2012. Her other son, Adrian Ernest Mack (the deceased), died intestate on 10 July 2014. The Public Trustee (WA) was granted letters of administration for Ah Bee Mack’s estate in April 2016 and for Adrian’s estate in October 2016.
In Public Trustee (WA) – v- Mack [2017], the administrator of Adrian’s estate, sought the court’s guidance on how to distribute the portion of Adrian’s estate that consists of assets from Ah Bee Mack’s estate the two individuals entitled to benefit are Brent—who murdered Ah Bee Mack—and Gary Norman Mack, the deceased’s half-brother (but not Ah Bee Mack’s son). The central issue is whether Brent is barred from receiving any portion of Ah Bee Mack’s estate due to the forfeiture rule, even though that part of the estate passed indirectly to him through his brother’s intestate estate.
Master Sanderson concluded that allowing Brent to benefit indirectly from his crime would contravene the forfeiture rule. Therefore, none of Adrian’s estate, derived from Ah Bee’s assets, should be distributed to the defendant.
Background
Bruce James Saunders (the deceased) died on 12 November 2017. At that time, he owned real property at 24 Wentworth Court, Nambour, mortgaged to Perpetual Trustee Company Limited. The mortgage defaulted following his death, and Perpetual sold the property. After discharging the secured debt and associated expenses, Perpetual retained a surplus of $34,441.83.
The deceased’s Will, dated 24 October 2017, bequeathed his entire estate to Sharon Graham (the beneficiary). However, police later charged the beneficiary with the deceased’s murder. Under the forfeiture rule (see Re Crippen [1911] P 108; Helton v Allen (1940) 63 CLR 691), a person convicted of unlawfully killing a testator cannot benefit from their estate. Accordingly, Perpetual paid the surplus funds into the Court pending resolution.
The beneficiary also asserts an equitable interest in the estate property based on financial contributions, relying on Baumgartner v Baumgartner (1987) 164 CLR 137, where the High Court of Australia established that a de facto partner who has made significant contributions to a jointly held property, including financial donations, may have an equitable interest in that property, even if the other partner solely owns it. Importantly equitable claims, such as resulting or constructive trusts, can still be pursued however they do not override the proper administration of the estate.
The Public Trustee of Queensland applied for the following orders, requesting that the Court determine the matter on the papers.
- 1. A declaration that, in its capacity as administrator of the estate of the late Bruce James Saunders, the Public Trustee is entitled to funds held in Court.
- 2. An order under s 27(2) of the Civil Proceedings Regulation 2024 directing the Chief Executive to release those funds from the Court Suitors Fund to the Public Trustee.
- 3. Any further orders the Court deems appropriate.
- 4. The Estate should pay the Public Trustee’s costs on an indemnity basis.
Determination Without Oral Hearing
Under rule 489 of the Uniform Civil Procedure Rules 1999 (Qld), an applicant may request that an application be decided without a hearing. The Court must grant that request unless one of the exceptions under rule 489(2)(a)-(d) applies.
(a) Under rule 491, the Court considers it inappropriate to do so; or
(b) Under Rule 494, the respondent requires an oral hearing; or
(c) Under rule 495, the applicant abandons the request for a decision without an oral hearing; or
(d) The Chief Justice or Chief Judge suspends the operation of this rule by direction.
UCPR 1999(Qld) r489(2)(a)-(d)
None of those exceptions applied in this matter. Accordingly, the Court proceeded to determine the matter without an oral hearing.
Entitlement to Funds
As estate administrator, the Public Trustee gathers estate assets, including the funds paid into the Court, without prejudice to any equitable claim the beneficiary may pursue. Accordingly, the Court held it appropriate to pay the funds out of Court to the Public Trustee. Similarly, the estate should pay application costs on an indemnity basis.
Court Orders
- 1. The Court will determine the application on the papers without an oral hearing.
- 2. The Public Trustee is entitled to the funds held in Court.
- 3. According to s 27(2) of the Civil Proceedings Regulation 2024, the Chief Executive is to pay the funds to the Public Trustee from the Court Suitors Fund.
- 4. The Public Trustee’s costs are to be paid from the estate on an indemnity basis.
The Forfeiture Rule prevents those legally responsible for a person’s death from inheriting from their victim’s estate. This principle applies to both murder and manslaughter and operates regardless of criminal conviction. When enforced, the disqualified person’s share is redistributed among other named beneficiaries or, if none exist, according to intestacy laws. Ultimately, the rule reinforces the idea that no one should profit from their wrongful actions.
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