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Victorian law reform: Death benefits

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Cite as: Jan/Feb 2015 89 (1/2) LIJ, p.77

It is important to provide greater certainty in succession matters following an unlawful killing.

The Victorian Law Reform Commission’s report on the common law rule of forfeiture was tabled in Parliament on 14 October 2014. The VLRC had been asked to review the rule and make recommendations on the need for legislative or other reforms to clarify the application of the rule or replace the common law.

Application of the rule

The law as it currently applies in Victoria is described by Justice Gillard in Re Estate of Soukup (1997) 97 A Crim R 103. The forfeiture rule prevents persons who have killed unlawfully from inheriting or otherwise deriving a benefit from the death of their victim unless they are found not guilty by reason of mental impairment. However, Soukup left open the question of whether the rule applies to every manslaughter case. Justice Gillard suggested that the rule does not apply if the person was not guilty of deliberate, intentional and unlawful violence or threats of violence resulting in death. More recently, in Re Edwards [2014] VSC 392 (22 August 2014), Justice McMillan agreed and stated that she doubted that the rule would apply to a case of “culpable driving causing death or other crimes of a similar nature”.

Uncertainty about the scope of the rule makes it difficult for legal practitioners to advise clients and encourages parties to litigate in ambiguous cases. This increases costs to the estate and delays distribution to innocent parties.

In Victoria, once the rule has been found to apply, it applies regardless of the circumstances: the court may not take into account the moral culpability, motive or intention of the killer. Because the rule is applied strictly, it can produce harsh results. For example, a person who kills their abuser after ongoing family violence would be deprived of entitlements that, morally, they may still deserve.

Other jurisdictions have introduced legislation to address injustice that can be caused by the strict application of the rule – the Forfeiture Act 1995 (NSW), the Forfeiture Act 1991 (ACT) and the Forfeiture Act 1982 (UK). Under these Acts, the court may modify the effect of the rule on application where required by the justice of the case. New South Wales legislation also allows applications to be made to the court to apply the forfeiture rule to persons found not guilty because of mental illness.

Proposed reforms

The VLRC considers it important to achieve a balance between greater certainty and fairness.It recommends legislation be enacted that:

  • specifies when the rule applies by creating a nexus with indictable offences under the Crimes Act 1958 (Vic);
  • excludes from the rule offences for which any offender would have a low level of moral culpability and responsibility – infanticide, dangerous driving causing death, manslaughter pursuant to a suicide pact with the deceased person, or aiding or abetting a suicide pursuant to such a pact;
  • retains the existing exception at common law for persons who are not guilty by reason of mental impairment;
  • provides the curt with a discretion to modify the effect of the forfeiture rule in respect of all offences to which it applies if required by the justice of the case – except murder; and
  • is prescriptive in framing the court’s discretion to focus on the moral culpability.

Effect of the rule

Once the forfeiture rule has been applied, the court must consider how to dispose of an interest or entitlement. In Victoria, the application of the rule generally results in the exclusion of innocent third parties from taking a benefit in place of the killer.

The ACT and NSW Forfeiture Acts have been criticised for giving the court discretion to alter the effect of the rule but failing to deal with the effect when the rule applies. However, in the UK the estate is distributed as if the killer predeceased the victim, allowing innocent third parties to take benefits that they might otherwise be excluded from.

Recommendations

The VLRC recommends that a Victorian Forfeiture Act should amend existing legislation to provide greater certainty. If enacted, these amendments would:

  • prevent an offender from acting as executor or administrator of the estate by deeming that the offender predeceased the victim;
  • clarify how to distribute a forfeited gift;
  • enable the offender’s children to inherit a share of the estate;
  • prevent an offender from making an application for family provision;
  • clarify the effect of the rule on the deceased person’s interest in property that they and the offender owned as joint tenants; and
  • clarify the effect of the rule on the distribution of a payment under a state statutory defined benefit superannuation scheme.

Read the report at: www.lawreform.vic.gov.au.


Contributed by the VICTORIAN LAW REFORM COMMISSION. For further information ph 8608 7800 or see www.lawreform.vic.gov.au.

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