Forfeiture Revisited: South Australia’s Statutory Framework
Practitioners in succession and estate litigation have missed a quiet but significant reform. The Forfeiture Act 2024 (SA) started on 15 January 2025. The Act was enacted after the recommendations of the South Australian Law Reform Institute (SALRI). It places the forfeiture rule on a clear statutory footing. The Act introduces judicial discretion that is carefully confined to temper its operation in exceptional circumstances. This includes, notably, cases of murder.
This reform invites a timely reassessment of the rationale, scope, and operation of the forfeiture rule. It also calls for a reassessment. This involves evaluating how South Australia has chosen to recalibrate a doctrine long described as “strict and unbending.”
The Common Law Forfeiture Rule
The forfeiture rule is entirely a product of the common law. Its modern formulation is usually traced to Cleaver v Mutual Reserve Fund Life Association (1892), where a wife who murdered her husband was barred from claiming the proceeds of a life insurance policy taken out in her favour. Fry LJ articulated the enduring public policy principle:
No system of jurisprudence can with reason include amongst the rights it enforces. It can’t enforce rights directly resulting to the person asserting them from that person’s crime.
From this foundation, a strict rule of public policy emerged: an unlawful killer must not profit from their wrongdoing. The rule applies to murder and all forms of manslaughter, and its consequences are far-reaching. An unlawful killer is excluded from taking under a will or on intestacy. They are barred from insurance proceeds and pensions. They are prevented from making family provision claims. Such a person is also excluded from estate administration and disentitled to survivorship interests in property. This occurs through severance of joint tenancies or the imposition of constructive trusts.
Despite its breadth, the technical operation of the forfeiture rule across succession, property, and trust contexts has often been uncertain. This aspect has been under-examined. It is a key driver of reform.
The “Absolute and Inflexible” Rule
At common law, the forfeiture rule has been repeatedly characterised as rigid. It is not a doctrine concerned with moral nuance or individual justice. Motive, mental impairment, provocation and family violence have traditionally been irrelevant.
This inflexibility was starkly illustrated in Troja v Troja, where a wife who killed her abusive husband was convicted of manslaughter based on diminished responsibility. The NSW Court of Appeal held that no discretion existed to mitigate the forfeiture rule. Meagher JA emphasised that the rule reflects:
an abhorrence of the notion that one may profit from killing another… It is absolute and inflexible.
The rule has extended beyond murder. It now includes assisting suicide, surviving a suicide pact, and causing death by dangerous driving. Its boundaries have never been entirely clear. It may be applied in civil proceedings even after a criminal acquittal.
Statutory Responses Elsewhere
Other jurisdictions have long grappled with the harshness of the common law rule. England, NSW, and the ACT have enacted legislation allowing courts a discretion to change the rule in non-murder cases. These reforms preserve the common law framework while permitting limited relief where justice demands.
New Zealand adopted a different path, comprehensively codifying the rule in the Succession (Homicide) Act 2007. While this approach provides clarity, it has been criticised as overly rigid.
Law reform bodies have consistently recognised the tension. Absolute rules promote certainty. Still, discretion is often necessary to avoid manifest injustice in cases of reduced culpability. As one commentator observed, no statute can predict the infinite variety of circumstances in which unlawful killings occur.
SALRI’s Approach
SALRI concluded that the policy foundation of the forfeiture rule remains sound. Generally, an unlawful killer should not benefit from their crime. However, it found the common law unsatisfactory due to uncertainty and the potential for unfair outcomes in cases involving lower moral blameworthiness.
Rejecting strict codification as too inflexible, SALRI recommended a statutory scheme incorporating limited judicial discretion. This model draws on Victorian law reform proposals. It recognises particular concern for cases involving mental impairment. It also addresses domestic or family violence.
While acknowledging that discretion may introduce some uncertainty, SALRI considered this preferable. This approach is better than enforcing a rigid rule incapable of responding to individual circumstances.
The Forfeiture Act 2024 (SA)
The Forfeiture Act 2024 (SA) was passed with bipartisan support. Its purpose is not to abandon the forfeiture rule, but to clarify, modernise and humanise its operation.
From 15 January 2025, South Australian law:
· Codifies and extends the forfeiture rule. It applies to all forms of unlawful homicide recognised under the Criminal Law Consolidation Act 1935 (SA).
· Empowers executors and administrators to seek Supreme Court guidance. They want to know whether, and to what extent, the rule applies to an estate.
· Excludes persons found mentally incompetent to commit the offence. They are not capable to stand trial. This is contingent on an application by an interested person.
· Introduces a central discretion. This allows the Supreme Court to change or remove the rule. Exceptional circumstances make this necessary in the interests of justice.
· Provides remedial powers, including tracing and recovery of benefits improperly received.
· Restores entitlements where a conviction for unlawful killing is overturned on appeal.
Notably, the Act confirms that deaths occurring under South Australia’s voluntary assisted dying regime are not considered “unlawful killing.” This holds for forfeiture purposes.
Exceptional Circumstances and Judicial Discretion
Section 9 of the Act is pivotal. It allows modification of the forfeiture rule, even in cases of murder. However, this is only possible where exceptional circumstances are shown. In determining this, the court must consider:
· the circumstances of the offence,
· the effect of the rule’s application, and
· any other matter it considers material.
This is a deliberately high threshold. Courts are expected to exercise discretion sparingly, mindful of the firm public policy against profiting from crime. Yet, guidance from case law suggests circumstances where flexibility is justified. These include deaths caused by dangerous driving, suicide pacts, and assisted suicide. Other situations are mercy killings, significant cognitive impairment, and killings arising from prolonged domestic abuse.
Conclusion
The Forfeiture Act 2024 (SA) strikes a measured balance. It preserves the core public policy that one must not kill and then profit from that act. At the same time, it acknowledges that justice sometimes requires nuance. The Act resists rigid codification. It confines discretion to truly exceptional cases. This approach modernises an ancient rule without undermining its moral foundation.
Practitioners should note that the Act applies only to unlawful killings occurring on or after 15 January 2025 — but its implications for estate planning, administration and litigation in South Australia are to be significant