(iii) Application of the Forfeiture Rule

(1) Entitlement to the Benefit Must Be Caused by the Killing

For the forfeiture rule to be applicable to prevent the criminal from obtaining benefits it must be shown that the unlawful killing directly caused the criminal to become entitled to the benefits.^[1] The usual ‘but for’ test of causation is applicable for these purposes. So it must be shown that the consequence of the killing is that the killer became entitled to benefits to which he or she would not otherwise have been entitled or that the killer had become entitled to benefits sooner than he or she would otherwise have done.^[2] The forfeiture rule should be applicable where the killer has simply accelerated the acquisition of the benefit because, by killing the victim, the killer has deprived the victim of the opportunity to change his or her mind as to the destination of the benefit and has removed the possibility that the killer might have predeceased the victim. This is illustrated by Re Edwards,^[3] a decision of the court of Victoria in Australia. The deceased had acted violently towards his wife. During a fight she stabbed and killed him. She was convicted of defensive homicide,^{1 4} as she had no reasonable ground for believing that the conduct was necessary to defend herself from serious injury or death. The deceased had left all his estate to his wife. If she did not survive him, it went to his mother-in-law and to a charity. The effect of the forfeiture rule was that the wife lost the estate and, because the gift overs failed because the wife had survived the deceased, the estate went to the deceased’s daughter from his first marriage from whom he was estranged. McMillan J justified the forfeiture rule as an instantiation of a wider principle of public policy that a person should not be allowed to profit from their crime. She added that neither hardship on the defendant nor low moral culpability of the killer was a basis for disapplying the rule.^[4]

In certain circumstances it will be difficult to show that the killer became entitled to benefits because of the unlawful killing. For example, if the killer unlawfully wounded the victim who, before he or she died, made a will in favour ofthe killer, it is not possible to say that the killer had become entitled to the benefits as a result ofthe killing, since the benefits accrued as a result of the victim’s acts after the fatal injury had been caused. Similarly, if before death the victim had the opportunity to alter the devolution of his or her estate but failed to do so, it could be argued that the killer became entitled to benefits as a result of the victim’s omission rather than the killing. But it would only be possible to conclude that the victim’s omission had broken the chain of causation where the victim knew that he or she had the opportunity to alter the devolution of property and consciously failed to do so. In the absence of clear evidence to this effect, this will be a very difficult to prove.

There will be a point at which the killing is too remote a cause of the benefits accruing to the killer and in such circumstances the forfeiture rule will not operate to deprive the killer of such benefits. This is illustrated by a South African case^[5] where a father killed his parents who had bequeathed property to his child, and the child died shortly after the parents had been killed. It was held that the father could inherit the property which the child had been bequeathed by its grandparents. Although it could be argued that, but for the father killing his parents, the child would not have received the property and so the father would not have been able to inherit, the killing had ceased to be an operative cause, since the father did not receive the property from his parents directly. Consequently, the forfeiture rule was held to be inapplicable.

(2) The Types of Benefits to Which the Forfeiture Rule May Apply

Where the forfeiture rule is applicable it may prevent the killer from obtaining a number of different benefits. For example, a killer is not entitled to benefit under the will^[6] or intestacy^[7] of the deceased. Similarly, a killer is not entitled to benefit from a life insurance policy on the victim’s life.^[8] The forfeiture rule has even been applied to deprive a killer of social welfare payments, such as a widow’s pension, to which he or she would otherwise have been entitled.^[9]

(3) Application of the Forfeiture Rule to Cases Where There is a Joint Tenancy

A particular problem arises in respect of the application of the forfeiture rule where there is a joint tenancy. For example, where a husband and wife are joint owners of the matrimonial home and the wife kills her husband, what happens to their respective interests in the property? The effect of a joint tenancy is that each joint tenant is assumed to own the whole of the legal interest over the relevant property, subject to the co-existing and co-extensive rights of the other joint tenants. This means that, if there are two joint tenants and one of them dies, the other is automatically entitled to the property absolutely. But, if one of the joint tenants dies as a result of being unlawfully killed by the other joint tenant, should the forfeiture rule come into operation and so prevent the killer from obtaining the property? This problem does not arise where there is a tenancy in common, since in such a case the property is owned equally by the tenants in common, so that if one tenant kills the other, the killer will not be deprived of the interest which he or she already possesses, but the forfeiture rule will prevent the killer from obtaining the interest of the deceased to which he or she might otherwise have been entitled.^[10] But the application of the forfeiture rule is more complicated where there is a joint tenancy, essentially because the effect of killing the other joint tenant is that the killer’s rights are enlarged rather than created as a result of the commission of the crime. There are two possible solutions to this problem.

First, the killer should be allowed to retain his or her beneficial interest in half of the property for life, but on his or her death the interest should revert to the beneficiaries of the victim’s estate. This has the advantage that the killer’s estate is eventually deprived of the beneficial interest in his or her half of the property and this is justified because, by killing the victim, the killer has deprived the victim of the chance of surviving the killer and so of becoming entitled to the whole of the property.^[11] Consequently, it should be assumed that the victim would have survived the killer and so would have taken the property absolutely by virtue of survivorship. But this smacks of double punishment since, in addition to the punishment of the killer for the unlawful killing, the killer’s estate will also be deprived of property to which the killer was already entitled before the crime was committed. There is no warrant for extending the operation of the forfeiture rule in this way. To make matters worse, the effect of this punishment of depriving the killer’s estate of the property is that the killer’s beneficiaries are effectively being punished for the killer’s crime, whereas the killer was allowed to enjoy the benefit of half of the property.

The second, and preferable, solution to the problem is that the killer should be entitled to retain half of the beneficial interest in the property, but the other half should pass to the deceased’s next of kin.^[12] The best way of achieving this solution is as follows. By the usual rule of survivorship the entire legal interest in the property will be vested in the killer. The killing should, however, be treated as a severance of the joint tenancy so that the beneficial interest vests in the victim and the killer as tenants in common.^[13] The doctrine of survivorship would apply so that the killer would hold the asset in which she already had a proprietary interest on constructive trust for the person who would otherwise be entitled to the estate of the deceased.^[14] Where there are three joint tenants, one of whom kills the other, again the killer should not be deprived of an existing proprietary interest, but the principle of survivorship should still operate in favour of the other joint tenant, who would consequently obtain the victim’s interest in the property.^[15]

The advantage of this solution to the problem of joint tenants who kill is that the forfeiture rule prevents the killer from benefiting from the commission of the crime without depriving the killer, or those claiming through him or her, of an existing proprietary right. Consequently, in the case of a wife who has killed her husband, the forfeiture rule should not be used to deprive her of her own interest in the matrimonial home, since this right did not arise as a result of the killing. Rather, she should be prevented from acquiring her deceased husband’s share of the matrimonial home. The effect of this solution is still that the killer is deprived of an existing right, namely the right of a joint tenant to gain the entire estate should the other joint tenant predecease him or her, but this is entirely appropriate since, by virtue of the killing, any chance that the other joint tenant would have naturally predeceased the killer has been removed.

(4) Application of the Forfeiture Rule Where the Victim is a Life Tenant

A similar problem to that of killings by joint tenants arises where property has been settled on one person for life with remainder to another person, and that person unlawfully kills the life tenant. The effect of the death is that the killer is entitled to the estate immediately, but this would mean that the killer would profit from the crime, which is contrary to public policy.^[16] But, if the forfeiture rule is invoked to prevent the killer from obtaining the property, he or she would be deprived of a proprietary interest which already existed before the killing. To reconcile these conflicting policies it is necessary to identify the true benefit which the killer obtains by unlawfully killing the life tenant. This benefit is that the killer accelerates the enjoyment of the life interest. The best method for preventing the killer from enjoying this benefit is by determining what the life tenant’s life expectancy was and preventing the killer from enjoying the property until it was likely that the victim would have died naturally.^[17] Consequently, the killer should hold the property on a constructive trust in favour of the victim’s estate until the victim was expected to have died naturally.

(5) Claims of Third Parties

Whether third parties are able to claim benefits which accrue as a result of the commission of an unlawful killing turns on whether the third parties’ claim relates to a benefit which accrued to the killer as a result of the crime. If the claim is so related it will be defeated by the forfeiture rule, because the effect of the rule is that the killer cannot obtain the benefit, and, if the killer does not have the benefit, the third party cannot claim it either.^[18] Such benefits are tainted by the crime and so are caught by the forfeiture rule. If, however, the third party has an independent claim to the benefit, he or she will not be affected by the forfeiture rule because the claim is untainted by the crime.

The typical example of a case where the third party’s claim is tainted by the crime is where personal representatives of the killer wish to claim benefits to which the killer would have been entitled had the forfeiture rule not been applicable. If the effect of the forfeiture rule is that the killer could not have obtained the benefits, neither should the personal representatives. This is illustrated by Beresford v Royal Insurance Co^[19] where the personal representatives of the deceased who had committed suicide were unable to recover policy moneys from an insurance company, with which the deceased had obtained a life insurance policy. This was because at the time suicide was a crime and it was contrary to public policy that the personal representatives should recover the fruits of the crime, namely the money which was due as a result of the death of the suicide victim.

An example of a case where a third party was able to claim benefits because the claim was untainted by the commission of the crime is the decision of the Court of Appeal in Cleaver v Mutual Reserve Fund Life Association,² 1 where a wife killed her husband who had a policy of life insurance with the defendants. The executors of the deceased claimed the sum insured from the defendants. Whilst it was admitted that the wife could not benefit from this money because of the forfeiture rule, this rule could not be relied on to prevent the defendants from paying the money to the deceased’s executors. It was only once the executors had received this money that they would have been prohibited from paying it to the wife by virtue of the forfeiture rule.

(6) Allocation of Benefits Which Are Caught by the Forfeiture Rule

If the killer and those claiming through the killer are unable to obtain benefits by virtue of the forfeiture rule, such benefits should be considered to be retained by the victim’s estate and so should be transferred to those people who are beneficiaries of that estate, except for the killer. Normally benefits, such as property, will pass to the victim’s residuary legatee^{[20] [21]} or to those who are entitled to the property if the victim died intestate.^{[22] [23]} If the killer was the sole residuary legatee, the property should be distributed as though the victim had died intestate.^{2 4} If the property was left to a class of beneficiaries, one of whom was the killer, the killer’s share should be divided equally between the other members of the class.^[24]

It has sometimes been suggested that, rather than the victim’s estate passing to the next person in succession after the criminal, it should pass as bona vacantia to the Crown.^[25] But there is no reason why the forfeiture rule should be used to deprive the successor of his or her rights to the estate, since these rights were not created by the commission of the crime, but rather arose from the law of intestacy or by virtue of the terms of the victim’s will. In other words, the successor’s rights are not tainted by the commission of the crime.

(7) Proprietary Implications of the Forfeiture Rule

A consequence of the principle that no criminal should profit from his or her crime is that title to property which would otherwise accrue to the criminal, or to those claiming through him or her, cannot pass. But this result is not free from difficulty. This is because in many cases, whether by virtue of statute or the common law, legal title should indeed pass to the criminal, and there is no provision in statute or the common law to the effect that an exception should be made where the passing of property is triggered by the criminal’s own act. For the forfeiture rule to work it must be assumed that, for reasons of public policy, every legal rule contains an implied term to the effect that no criminal who, by the commission of the crime, has triggered the passing of property should be allowed to benefit from the crime.²⁰⁷ It would be a much more honest response to apply the relevant statutory and judicial laws literally, without artificial interpretation. This would mean that legal title to property would pass to the criminal. But, because of the principle that no criminal should profit from his or her crime, Equity should ensure that, because of the killer’s unconscionable conduct, an equitable interest in the property is created in favour of the victim, with the result that the criminal should hold the property on a constructive trust for the victim’s estate.^{[26] [27]} This would have the advantage that the operation of the forfeiture rule would not conflict with the clear words of statute and judicial precedent but would continue to fulfil the policy that no criminal should profit from his or her crime. This is the approach adopted in the United States, where Equity intervenes to prevent the killer from profiting from his or her unconscionable conduct by imposing a constructive trust.

A consequence of this would be that, if the property which had been acquired by or through the criminal had been received by a third party, the beneficiaries of the victim of the crime would be able to recover the property from that third party, who would be bound by the beneficiaries’ equitable proprietary interests. But this is subject to the qualification that the property could not be recovered from a third party who was a bona fide purchaser for value.^[28]

The significance of the proprietary response is illustrated by Re DWS.^[29] In this case a son murdered his parents, who died intestate. Their grandchild claimed that he was entitled to his grandparents’ estate because his father was not entitled to his parents’ estate by virtue of the forfeiture rule. However, the Administration of Estates Act 1925 prevents a person from succeeding to the estate of an intestate person if his or her parent is still alive. Consequently, the Court of Appeal held by a majority^[30] that the grandson could not succeed to his grandparents’ estate, which consequently went to collateral relations. This is a particularly unfair result which could have been avoided by concluding that, rather than the forfeiture rule operating to prevent the father from succeeding to the estate at all, it should only have prevented him from succeeding to the estate beneficially, so that he should have held the estate on constructive trust for his son. This solution would be consistent with the legal realities of the case and the words of the statute: legal title to the parents’ estate passed to the murderer, but because he had acquired those rights unconscionably, he should have held the property on constructive trust for his son. An alternative solution has now been adopted by Parliament. By the Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011, the Administration of Estates Act 1925 and the Wills Act 1837 are amended, so that a murderer who has, for example, killed a parent will be deemed to have died immediately before the death of the parent. It follows that the victims’ estate in a case such as Re DWS would pass to the person next entitled either under the will or on an intestacy, namely, in that case, the murderer’s own child, bypassing the murderer.

• [1] J said that the forfeiture rule prevented the killer from benefiting directly or indirectly from the crime.
• [2] TG Youdan, ‘Acquisition of Property by Killing’ (1973) 89 LQR235.
• [3] [2014] VSC 392. 184 Crimes Act 1958, s 9AD.
• [4] In England the rule would be modified under the Forfeiture Act. See p 552, below. No similar statute hasbeen enacted in Victoria.
• [5] Exp Steenkamp (1952) (1) SA 744 (T).
• [6] Re Giles (deceased) [1972] Ch 544.
• [7] Re Sigsworth [1935] 1 Ch 89.
• [8] Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147. In Gray v Barr [1971] 2 QB 554 theforfeiture rule prevented the killer from claiming an indemnity from his insurers in respect of his liability forthe unlawful death of the victim.
• [9] Chief National Insurance Commissioner, exp Connor [1981] 1 QB 758.
• [10] Davittv Titcumb [1990] Ch 110.
• [11] G Jones, Restitution in Public and Private Law (London: Sweet and Maxwell, 1991), 69.
• [12] Re K (deceased) [1985] Ch 85, 100 (Vinelott J).
• [13] This solution was approved in Dunbar v Plant [1998] Ch 412, 418 (Mummery LJ).
• [14] The solution adopted in the Irish case of Cawley v Lillis [2011] IEHC 515.
• [15] See Street J in Rasmanis v Jurewitsch [1968] 2 NSWLR 166, 168.
• [16] Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, 157 (FryLJ).
• [17] Youdan, ‘Acquisition of Property by Killing’, 250.
• [18] Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, 155 (Lord Esher MR); In the Estate ofCunigunda (otherwise Cora) Crippen (deceased) [1911] P 108, 112.
• [19] [1938] AC 586.
• [20] [1892] 1 QB 147. 202 As occurred in Re Peacock [1957] Ch 310.
• [21] 203 Re Sigsworth [1935] Ch 89. 204 Re Pollock [1941] 1 Ch 219; Re Callaway [1956] Ch 559.
• [22] 205 Re Peacock [1957] Ch 310. 206 See Re Callaway [1956] Ch 559.
• [23] 207 See, for example, Re Royse [1985] Ch 22 where it was assumed that the application of the Inheritance
• [24] (Provision for Family and Dependants) Act 1975 was subject to the forfeiture rule, even though the Act makes
• [25] no provision for this rule.
• [26] Youdan, ‘Acquisition of Property by Killing’, 253. This would be consistent with Lord Browne-Wilkinson’s interpretation of the constructive trust in Westdeutsche Landesbank Girozentrale v IslingtonLBC [1996] AC 669, 716. See p 595, below.
• [27] Restatement Third on Restitution and Unjust Enrichment, para 45: the so-called ‘slayer rule’, but notwhere a statute prevents the killer from acquiring legal title, in which case the property passes to the personwith the paramount equitable claim.
• [28] See Chapter 23. 211 [2001] Ch 568.
• [29] 212 Sedley LJ held that the estate should pass to the Crown as bona vacantia in the hope that the Crown
• [30] would transfer all or some of it to the grandson. 213 Forfeiture Act 1982, s 5.