The Forfeiture Rule: Consultation Paper

ACT Act

Forfeiture Act 1991 (ACT)

Administrator

A person appointed by the court under letters of administration to administer a deceased estate that has no executor. This may be because there is no will, the will does not appoint an executor,

or a named executor is unwilling or unable to act.

Duress

Under the Crimes Act 1958 (Vic), a person carries out conduct under duress if they reasonably believe that a threat has been made that will be carried out unless an offence is committed, and carrying out that conduct is the only reasonable way that the threatened harm can be avoided. The conduct must be a reasonable response to that threat and will only apply in relation to murder if the threat is to inflict death or really serious injury.

Executor

The person appointed by a will to administer a deceased person’s estate.

Family provision

Refers to family provision law, set out in Part IV of the Administration and Probate Act 1958 (Vic), which allows a person who believes that a deceased person had a responsibility to provide for them, and did not do so, to apply for a court order to redistribute the estate in their favour.

Intestacy

Occurs when a person dies without having made a valid will, or where their will fails to effectively dispose of all of their property. Intestacy can be partial, where only some of the deceased person’s property is effectively disposed of by will, or total, where none of the deceased person’s property is effectively disposed of by will.

Joint tenancy

Common ownership of property when all co-owners (or co-tenants) together own the whole piece of property, each having an undivided share. Property that is owned jointly passes to the surviving

co-owner or co-owners on the death of one of the co-owners and does not become part of the deceased person’s estate. See also survivorship and tenancy in common.

Mental illness

A medical condition that is characterised by a significant disturbance of thought, mood, perception or memory. It can include conditions such as depression, schizophrenic disorders, bipolar affective disorder, obsessive-compulsive disorder and post-traumatic stress disorder.

Mental impairment

Under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), the defence of mental impairment is established if,

at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment with the effect that:

they did not know the nature and quality of their conduct, or

they did not know that the conduct was wrong (that is, they could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people, was wrong).

NSW Act

Forfeiture Act 1995 (NSW)

NZ Act

Succession (Homicide) Act 2007 (NZ)

Residuary estate

The remainder of the estate after debts and liabilities are paid,

and specific gifts and legacies are distributed.

Self-defence

Under the Crimes Act 1958 (Vic), a person will not be guilty of murder if their conduct is necessary to defend himself or herself or another person from death or really serious injury. A person will not be guilty of manslaughter if there are reasonable grounds for believing that the conduct is necessary to defend himself or herself or another person; or to prevent or terminate the unlawful deprivation of their liberty or that of another person.

Survivorship

A right in relation to property held by two or more people as joint tenants. Where a co-owner (or co-tenant) dies, their share in the property passes to the surviving co-owner(s). It cannot be given

by will. See also joint tenancy.

Tenancy in common

A type of co-ownership where multiple parties own distinct interests in the same piece of property. The share owned by a tenant in common forms part of their estate and so can be given by will.

See also joint tenancy.

UK Act

Forfeiture Act 1982 (UK)