Thou shall not kill and inherit?

Recommendations could give courts discretionary powers in how they apply the law of forfeiture especially in cases where a victim of domestic abuse kills in self-defence.

The independent South Australian Law Reform Institute (SALRI) based at the Adelaide Law School, University of Adelaide has released a major report into the forfeiture rule that stops an unlawful killer profiting or inheriting as a result of their crime.

“At present the forfeiture rule is inflexible and applies to any murder or manslaughter regardless of individual circumstances or the killer’s culpability,” says Director of SALRI, the University of Adelaide’s Professor John Williams.

“While the premise of the law is sound in that an unlawful killer should ordinarily not benefit from their crime, we examined the scope of the rule and its practical implications and found that the existing law is uncertain, overly strict and needs more flexibility. Whether it applies should depend on the circumstances of the crime committed, especially where a death is the result of domestic violence.

“While the law of forfeiture must remain in place, there are situations where a more just approach is needed, as applying the law without regard for the circumstances of the crime may have unfair implications, such as in cases of domestic violence, suicide pacts, infanticide and euthanasia."Dr David Plater, SALRI Deputy Director.

“The forfeiture rule should continue to be clearly applied in South Australia to murder, all forms of manslaughter, causing the death of a child or vulnerable adult by criminal neglect, assisted suicide and the offence of causing death by culpable or dangerous driving.

“Changes to the law, which dates back to 1892, are needed as at times it has unfair consequences and can be unnecessarily harsh. It also requires clarifying in key areas.”

The Attorney-General, the Hon. Vickie Chapman commissioned SALRI’s report which makes 67 recommendations including that South Australia introduce a standalone Forfeiture Act as the preferred vehicle for reform.

“SALRI’s major review of the state’s forfeiture law is timely as previous cases have highlighted that there are problems with its scope and application. In particular, the strict application of the forfeiture rule has resulted in unfair outcomes,” says the Hon. Vicki Chapman.

Under the recommended Forfeiture Act, the court would have the discretion to modify how the law is applied in some cases of unlawful killings, where a court finds that it is in the interests of justice to do so and there are ‘exceptional’ circumstances. The killer and other interested parties would apply for a forfeiture modification order.

“While the law of forfeiture must remain in place, there are situations where a more just approach is needed, as applying the law without regard for the circumstances of the crime may have unfair implications, such as in cases of domestic violence, suicide pacts, infanticide and euthanasia,” says Dr David Plater, SALRI Deputy Director.

“Especially in domestic violence cases, where a person kills an abusive partner after prolonged abuse, the law should be changed so that the victim of domestic violence can apply to a court for an order to modify the way that the law applies. If a court makes that order, this will then allow the victim of domestic violence to receive their deceased partner’s estate and other assets including jointly owned assets, superannuation and insurance proceeds.

“The law should be flexible enough to take into account other circumstances such as where a person is convicted of an unlawful killing in relation to euthanasia or ‘mercy killing’ cases, or if the offender has diminished responsibility.

“In cases where a person survives a suicide pact or in cases of assisted suicide or infanticide, there also needs to be greater acknowledgement of these circumstances when applying the law.”

The University of Adelaide’s Dr Sylvia Villios led the project which found that the law needs clarification in a number of areas.

“The forfeiture rule is unclear as to which assets are subject to the law of forfeiture and as to how the assets of the deceased will be dealt with in those cases where the law applies,” said Dr Villios.

“The law also needs clarifying as to who can be an executor or administrator of the deceased person’s estate. SALRI’s report recommends that the Forfeiture Act should provide that the killer of the deceased person is disqualified from acting in these roles.”

Under the current law, the ‘sins of the unlawful killer are visited upon the blameless children’ who are precluded from receiving any of the victim’s estate. SALRI recommends that under the proposed Forfeiture Act, the killer should be deemed to have predeceased the victim, which would mean that the children of the killer are able to benefit from the victim’s estate and other assets.

Another major issue raised during SALRI’s consultation was how to protect the estate of the deceased victim from dissipation by the unlawful killer after the murder or manslaughter charges have been laid up until the time of conviction.

“There are a number of cases involving killers who have drained bank accounts held jointly with the deceased victim after charges had been laid,” says Dr Villios.

“We recommend that a victim’s assets should be protected to ensure that the killer does not have access to them until the matter has been resolved and after a court has considered whether the forfeiture rule applies, and whether a modification order should be made.”

SALRI’s review benefited from the views of experts, interested parties and the community. The report’s authors included Dr Villios, Dr Plater, Olivia Jay (former Law Reform student), Terry Evans (Law Society member of SALRI’s Advisory Board)) and Emily Ireland (Law School PhD student). SALRI is grateful for their input.   

Following the release of SALRI’s report by the Attorney-General, it will be for the South Australian Government and Parliament to consider the recommendations, and to decide whether or not to accept them.