Being an executor and administering a deceased estate is an onerous responsibility that may take months of administrative work. The role can be complicated further where a beneficiary, friend or family member is involved in the death of the testator (the person who made the Will). The RMB Wills and Estates Division explains the rules that apply in such cases.
Forfeiture rule - The Forfeiture Act 1995
This is a principle of public policy which generally prevents an individual who has killed another person from inheriting from their estate.
Under Section 139 of the Succession Act 2006 (NSW), should an individual be disqualified from taking an interest, they are deemed to have predeceased the person in the case of intestacy, preventing that person from being a beneficiary. However, the Supreme Court of NSW can modify the effect of the forfeiture rule should the court consider it appropriate.
Involuntary manslaughter
The application of the rule becomes less clear should the mental element of murder not be found. Foreign jurisdictions suggest that for the forfeiture rule to apply the act had to show an intent to bring about the death. This is somewhat reflected in Australia by section 11 of Forfeiture Act which details the factors that apply where a perpetrator is found not guilty by reason of mental illness. The Supreme Court of NSW may consider whether it is just for the parties to apply the forfeiture rule as if the perpetrator had been found guilty.
In the matter of Robinson v Settree [2018] NSWSC 1413, a son was found not guilty of the murder of his parents due to mental illness. The court considered the impact of the forfeiture rule on the perpetrator and observed that it would deprive him of his inheritance, leaving him dependent on welfare benefits, and ordered that a sufficient amount was to be held in trust on his behalf.
The executor of the estate generally needs to consider if the forfeiture rule applies to any inheritance where a beneficiary’s actions result in the death of the testator. If it does apply, the executor will need to redistribute the estate's assets to the other beneficiaries named in the Will. The executor mayseek an order from the Supreme Court of NSW to clarify the applicability of the rule.
RMB Lawyers can advise on such difficult situations and vigorously advocate for the rights of the estate and lawfully entitled beneficiaries. Your first step should be to contact our office to arrange a consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.