The Forfeiture Rule: Report (html)

Recommendations

1 Victoria should introduce a Forfeiture Act that defines the scope and effect of the

common law rule of forfeiture and provides for the Supreme Court, on application,

to modify the effect of the rule if the justice of the case requires it.

2 The purpose of the Forfeiture Act should be set out in the legislation and include:

(a) to reinforce the common law rule of public policy that a person who has unlawfully

killed another person cannot acquire a benefit in consequence of the killing and,

in so doing, to:

(i) manifest the community’s denunciation of unlawful killing

(ii) deter persons from unlawfully killing others for financial gain

(b) to modify the application of the rule to exclude offences where justice requires

(c) to provide for the effect of the rule to be modified if the justice of the case requires it

in view of an offender’s moral culpability and responsibility for the offence

(d) to codify the effect of the rule on rights of succession.

3 The Forfeiture Act should specify that, subject to the exceptions in Recommendation 4,

the forfeiture rule applies only where the killing, whether done in Victoria or elsewhere,

would be murder or another indictable offence under the Crimes Act 1958 (Vic).

4 The Forfeiture Act should specify that the forfeiture rule does not apply where the killing,

whether done in Victoria or elsewhere, would be an offence under the Crimes Act 1958 (Vic) of:

(a) dangerous driving causing death

(b) manslaughter pursuant to a suicide pact with the deceased person or aiding or abetting

a suicide pursuant to such a pact, or

(c) infanticide.

5 The existing exception to the common law rule of forfeiture for persons found not guilty by reason of mental impairment should be retained.

6 The Supreme Court should be empowered to make a forfeiture rule modification order if

satisfied that, having regard to the offender’s moral culpability and responsibility for the

unlawful killing and such other matters as appear to the Court to be material, the justice

of the case requires the effect of the rule to be modified.

7 In determining the moral culpability of the offender, the Supreme Court should have regard to:

(a) findings of fact by the sentencing judge

(b) findings by the Coroner

(c) victim impact statements presented at criminal proceedings for the offence

(d) submissions on interests of victims

(e) the mental state of the offender at the time of the offence, and

(f) such other matters that in the Court’s opinion appear to be material to the offender’s moral culpability.

8 The Forfeiture Act should empower the Supreme Court to make a forfeiture rule modification order that modifies the effect of the rule in such terms and subject to such conditions as the Court thinks fit.

9 Where a person has unlawfully killed another person and is thereby precluded by the forfeiture rule from obtaining a benefit, and the unlawful killing does not constitute murder, that person, or another ‘interested person’, should be able to apply for a forfeiture rule modification order.

10 An ‘interested person’ should mean:

(a) the ‘offender’ (a person who has unlawfully killed another person) or a person applying on the offender’s behalf

(b) the executor or administrator of a deceased person’s estate, or

(c) any other person who in the opinion of the Court has an interest in the matter.

11 The property, entitlements and other benefits that may be affected by a forfeiture rule modification order should be specified in the Forfeiture Act and include:

(a) gifts to the offender made by the will of the deceased person

(b) entitlements on intestacy

(c) eligibility to make an application for family provision under Part IV of the Administration and Probate Act 1958 (Vic)

(d) any other benefit or interest in property that vests in the offender as a result of the death of the deceased person.

12 On the making of a forfeiture rule modification order, the forfeiture rule should have effect for all purposes (including purposes relating to anything done before the order was made) subject to modifications made by the order.

13 On application by an interested person, the Supreme Court should be empowered to revoke or vary a forfeiture rule modification order if the justice of the case requires it.

14 An interested person (as defined in Recommendation 10) should be able to apply for revocation or variation of a forfeiture rule modification order if:

(a) the offender is pardoned

(b) the offender’s conviction is quashed or set aside and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction, or

(c) in all other cases—if the Court considers it just in all the circumstances to give leave for such an application to be made.

15 If a forfeiture rule modification order is revoked or varied, the forfeiture rule should have effect for all purposes (including purposes relating to anything done before the order was revoked or varied):

(a) in the case of a revocation—subject to the terms on which the Court revokes the order, and

(b) in the case of a variation—subject to modifications made by the varied order.

16 The Forfeiture Act should provide that, unless the Supreme Court gives leave for a late application to be made, an application for a forfeiture rule modification order must be made by the later of:

(a) if the forfeiture rule operates immediately on the death of a deceased person to prevent the offender from obtaining the benefit concerned—within six months from the date of the death of the deceased person

(b) if the forfeiture rule subsequently prevents the offender from obtaining a benefit—within six months from the date on which the forfeiture rule operates to preclude the offender from obtaining the benefit concerned

(c) six months after grant of probate of the will of the deceased person or letters of administration of the deceased person’s estate

(d) six months after all charges of unlawful killing laid against any beneficiary have been dealt with.

17 The Supreme Court should be permitted to give leave for a late application for a forfeiture rule modification order if:

(a) the offender concerned is pardoned by the Governor after the expiration of the relevant period

(b) the offender’s conviction is quashed or set aside by a court after the expiration of the relevant period and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction

(c) the fact that the offender committed the unlawful killing is discovered after the expiration of the relevant period, or

(d) the Court considers it just in all the circumstances to give leave.

18 The Forfeiture Act should provide that a conviction in Victoria or another Australian state or territory is conclusive evidence that an offender is responsible for the unlawful killing.

19 The transitional provisions should be based on section 9 of the Forfeiture Act 1995 (NSW).

20 The Administration and Probate Act 1958 (Vic) should be amended to provide that, where a person appointed executor by a will or who is otherwise eligible to be appointed administrator is precluded by the forfeiture rule from acquiring an interest in the deceased’s estate, the person is to be treated as having died immediately before the deceased person.

21 The Administration and Probate Act 1958 (Vic) should be amended to provide for the Court to pass over a person who applies for a grant of representation where there are reasonable grounds for believing that the person has committed an offence related to the deceased’s death. The provision should be based on section 348 of model legislation proposed in the December 2009 report of the National Committee for Uniform Succession Laws to the Standing Committee of Attorneys-General on the administration of estates of deceased persons.

22 Part 4 of the Wills Act 1997 (Vic) should be amended with the effect that:

(a) where a will contains a devise or bequest to a person who:

(i) disclaims it, or

(ii) has been precluded by the common law rule of forfeiture from acquiring it

the person is, unless a contrary intention appears by the will, to be treated for the purposes of the Act as having died immediately before the will-maker, and entitled to the devise or bequest at the time of the deemed death.

(b) this amendment does not affect the Court’s power under the Forfeiture Act to modify the effect of the forfeiture rule

23 The Administration and Probate Act 1958 (Vic) should be amended with the effect that:

(a) for the purposes of the distribution of an intestate’s residuary estate, a person who:

(i) is entitled in accordance with section 52 to an interest in the residuary estate but disclaims it, or

(ii) would have been so entitled if not precluded from acquiring it by the common law rule of forfeiture

is to be treated as having died immediately before the intestate, and entitled to the interest in the residuary estate at the time of the deemed death

(b) this amendment does not affect the Court’s power under the Forfeiture Act to modify the effect of the forfeiture rule.

24 Part IV of the Administration and Probate Act 1958 (Vic) should be amended to disentitle persons to whom the forfeiture rule applies from making an application for family provision in respect of the deceased person’s estate.

25 The effect of section 50 of the Transfer of Land Act 1958 (Vic) should be amended to provide that, where a joint proprietor has been unlawfully killed (within the meaning of the Forfeiture Act) by another joint proprietor, the property shall devolve at the death of the victim as follows:

(a) where the offender and the victim were the only joint proprietors, as if the property were owned by each of them as tenants in common in equal shares

(b) where there were more than two joint proprietors, as if:

(i) the offender holds their interest as a tenant in common

(ii) the surviving innocent joint proprietor(s) take the victim’s interest by survivorship

(iii) as between the offender on the one hand and the innocent joint proprietors on the other hand, a tenancy in common exists

(iv) as between the innocent joint proprietors, a joint tenancy exists.

26 If an offender obtains registration by survivorship under section 50 of the Transfer of Land Act 1958 (Vic) before it becomes apparent that the forfeiture rule applies, the Registrar should be empowered to rectify the Register appropriately.

27 Payments that would have been made to a person who is responsible for unlawfully killing a person who is a member of a state statutory defined benefit superannuation scheme or who otherwise has pension entitlements under state legislation should be redirected as if that person had died before the victim.