Australia: Murder and inheritance - the $40 bottle of wine story

Last Updated: 11 March 2019
Article by Angela Harvey and John Trinh

Everybody knows the basic rule – a person must not kill another. When it comes to dealing with the estates of victims of an unlawful killing, that rule becomes – a person shall not kill and inherit. In this article, we explore the application of the forfeiture rule to inheritance from a deceased estate. 

It is a general rule that a person shall not obtain any benefit that flows from their unlawful killing of another. This is known as the forfeiture rule. Further, the forfeiture rule operates to prevent other persons from claiming a benefit through the offender. An example of this is where an offender unlawfully kills another with an intent to trigger an inheritance for their children from the victim's estate.

In New South Wales, the forfeiture rule is now defined in section 3 of the Forfeiture Act 1995 (NSW) (Forfeiture Act) as ​"the unwritten rule of public policy that in certain circumstances precludes a person who has unlawfully killed another person from acquiring a benefit in consequence of the killing". 

We take a look at two recent Australian cases that examine the forfeiture rule. 

Re Settree Estates, Robinson v Settree [2018] NSWSC 1413

First, we consider the matter of Re Settree Estates, Robinson v Settree [2018] NSWSC 1413. This was a tragic case where a dispute over a $40 bottle of wine resulted in Scott Settree killing his parents, Mr and Mrs Settree with a shotgun. It is important to note that Scott's criminal trial resulted in a verdict of not guilty of murder by reason of mental illness. 

Mr and Mrs Settree had wills which in the circumstances meant that Scott and his sister, Wendy, were to share the parents' combined estate of $2 million equally. Wendy, as the executor of her parents' estates made an application to the Court under the Forfeiture Act in relation to Scott's inheritance. 

Sections 5 and 11 of the Forfeiture Act provide the Supreme Court with a discretion regarding forfeiture orders. Section 11 which specifically applies to persons found not guilty of murder by reason of mental illness sets out the relevant factors which include:

  • consideration as to whether justice requires the rule to be applied as if the offender had been found guilty of murder;
  • the conduct of the offender;
  • the conduct of the deceased person; 
  • the effect of the application of the forfeiture rule on the offender or any other person; and
  • such other matters that the Court considers material. 

In finding that justice required the forfeiture rule to be applied to Scott, the Lindsay J considered the following matters:

  • the conduct of Scott – Scott admitted that he intended to kill his parents, despite being found not guilty by reason of mental illness under the criminal law. There was an element of premeditation and he contemplated his parents' deaths in terms of benefit to himself. Scott's history of domestic violence, drug use and heavy drinking were also relevant;
  • the conduct of the victims – after the dispute about the $40 bottle of wine arose, Mrs Settree ordered Scott to move out of their home. Mr and Mrs Settree did not provoke Scott; 
  • the effect of the forfeiture rule on the defendant – the forfeiture rule would deprive Scott of his inheritance of about $1 million which will leave him totally dependant on the government for his needs; 
  • the effect of the forfeiture rule on other persons – if the forfeiture rule is to be unconditionally applied, it would be result in Wendy receiving all of her parents' estate, meaning that if any provision were to be made for Scott, it would essentially be at the expense of Wendy; 
  • other material matters – Scott's children had disclaimed any interest in their grandparents' estate and distanced themselves from their father. The Court also recognised the public revulsion in Scott's actions. Although in detention under State care, Scott cannot lack access to consumables and lacks funds for the ordinary contingencies of life. 

Although Scott did not make any claim for provision from his parents' estates, the Court made a conditional forfeiture order resulting in Scott receiving $50,000 from each of his parents' estates (a total of $100,000) with the funds to be held on trust for Scott by the NSW Trustee and Guardian. Further the Court ordered that the trust cannot be terminated without leave of the Court. This is to prevent Scott from claiming at some future date that he is entitled to terminate the trust and take control of the property. 

Public Trustee (WA) v Mack [2017] WASC 325

The second case is Public Trustee (WA) v Mack [2017] WASC 325 which concerns an indirect application of the forfeiture rule. In December 2008, Brent Mack killed his mother, Ah Bee Mack. A forfeiture order was made in 2014. As a result of the forfeiture order, Adrian Mack, Brent's brother inherited all of Ah Bee's estate. Adrian died in July 2014 without a will, meaning the two people entitled to inherit Adrian's estate were Brent and a half-brother, Gary Mack. The administrator of Adrian's estate sought orders as to the distribution of the part of Adrian's estate inherited from Ah Bee Mack. 

Before this decision, there were no Australian cases concerning an indirect application of the forfeiture rule, though the judgment referred to various American cases on the point. The Court stated: ​"Intuitively it would seem to be a logical extension of the rule of forfeiture to hold that a person in the position of Brent, a convicted murder, could not benefit directly or indirectly as a consequence of his crime." 

The Court then went on to find that as there was no significant modification to Adrian's estate for any reason which made identification the property he inherited from Ah Bee difficult, directions should be made to ensure that Brent does not benefit by his criminal conduct. That is, Brent could not inherit property from Adrian's estate which was derived from Ah Bee's estate. The Court also noted that there may be some doubt whether the indirect forfeiture rule would apply in cases where a significant period of time had elapsed between the unlawful killing and the passing of the property to the offender. 

Conclusion

In short, when a person unlawfully kills another, the forfeiture rule will apply to prevent the offender from directly inheriting property from the victim. Further, the forfeiture rule has been extended to cases of indirect inheritance, to prevent the offender from inheriting property from the victim if that victim's property forms part of another person's estate that the offender stands to inherit. 

For further information please contact:

Angela Harvey, Partner
Phone: + 61 2 9233 5544
Email: axh@swaab.com.au

John Trinh, Solicitor

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions