The Forfeiture Rule: Consultation Paper

Questions

1 What has been the effect of the Forfeiture Act 1991 (ACT) on the application and operation of the forfeiture rule in the Australian Capital Territory?

2 In Victoria, should the forfeiture rule be applied equally to all types of unlawful killing? If not:

(a) Which types of killing should be excluded from the operation of the rule?

(b) On what basis should they be excluded?

3 Should the forfeiture rule apply equally to all unlawful killers? If not:

(a) Should the courts be able to consider moral culpability?

(b) What other factors should be taken into account?

4 Should the absolute exception to the forfeiture rule for persons found not guilty by reason of mental impairment be retained? If not:

(a) In what circumstances should the exception not apply?

(b) Should the court have a discretion to apply the rule in the circumstances of the case?

5 How should contingent gifts over be distributed upon the application of the forfeiture rule?

6 Should the courts have a discretion to rectify a will to fulfil the will-maker’s probable intent?

7 Should Victoria’s intestacy laws permit an unlawful killer’s descendants to inherit from the victim, as representatives of the killer?

8 Are there any circumstances in which an unlawful killer’s descendants should be prevented from inheriting from the victim?

9 How should the courts distribute property subject to a joint tenancy once the forfeiture rule has been applied?

(a) Should an unlawful killer be able to retain their interest in the property?

(b) Should the victim’s estate be able to keep the victim’s interest in the property where there are multiple joint tenants?

10 How should the forfeiture rule apply to other assets that are not within the deceased’s estate?

11 Should the forfeiture rule prohibit an unlawful killer from applying for a share of the victim’s estate under family provision legislation?

12 Should issues about the effect of the forfeiture rule on the property and benefits that the killer would otherwise have derived on the death of the victim be addressed by amending the existing legislation under which the property of a deceased person is distributed?

13 Should Victoria introduce legislation, like that in the United Kingdom, Australian Capital Territory and New South Wales, that empowers a court to modify the effect of the forfeiture rule?

14 If Victoria introduced legislation that empowers a court to modify the effect of the forfeiture rule:

(a) Who should be able to apply for the rule to be modified?

(b) What should be the time limit for making an application?

(c) What principles, if any, governing the court’s discretion should be stated in the legislation?

(d) What guidance should the court be given in exercising its discretion?

(e) Which property and other interests should be able to be affected by the order?

15 Should Victoria codify the common law rule of forfeiture?

16 If Victoria introduced legislation that codified the common law rule of forfeiture:

(a) How should it allow for exceptions, such as where the code would normally be applied but in view of the circumstances of the killing it would not be justified?

(b) How should it provide for the code to be applied to a person who has not been prosecuted, or was found not guilty because of mental impairment?

(c) How should it accommodate changes in circumstances, such as where a crime is resolved many years after the event, or a person’s conviction is overturned?

(d) What other matters should be addressed in a codified rule (and how)?