Murder, Manslaughter and Inheritance: How the Forfeiture Rule Works in NSW

In New South Wales, a person who has unlawfully killed another cannot inherit from their victim’s estate. This is known as the forfeiture rule, a long-standing rule of public policy which overrides the terms of a will, the rules of intestacy, and even the operation of survivorship in jointly held property. The rule applies whether the killing amounts to murder or manslaughter, though the courts have a statutory power to modify its effect in manslaughter cases where justice requires it. If you are an executor, a co-beneficiary, or a family member trying to work out what happens next, it is important to seek advice early, because the interaction between the criminal proceedings and the estate administration can be complex.

What Is the Forfeiture Rule?

The forfeiture rule is a common law principle: a person should not profit from their own serious wrongdoing. Where that wrongdoing is the unlawful killing of another, the killer is treated as disqualified from taking any benefit that flows from the death.

In plain English, the rule prevents:

• a beneficiary named in the deceased’s will from taking their gift;
• a next-of-kin from inheriting on intestacy (where there is no will);
• a joint tenant from taking the deceased’s share by survivorship;
• a nominated beneficiary from receiving superannuation death benefits or life insurance proceeds in some circumstances; and
• the killer’s own descendants from taking through them, subject to how the estate is then distributed.

The rule operates automatically. It does not require a separate court order to “trigger” it, although in practice, the executor or an interested beneficiary will often need to bring proceedings to have the position confirmed and the estate distributed accordingly.

Murder and Manslaughter Are Treated Differently

For murder, the rule applies with full force and cannot be modified. For manslaughter, the position is more nuanced. Manslaughter covers a wide range of conduct, from a one-punch death in a moment of anger to a mercy killing of a terminally ill spouse, to a death caused by criminal negligence. The moral culpability across those cases is very different, and the law recognises that.

In New South Wales, the Forfeiture Act 1995 (NSW) allows the Supreme Court to make a forfeiture modification order in cases other than murder. The court will consider the conduct of the offender and the deceased, and any other matters that appear material to justice, before deciding whether the rule should be modified in whole or in part.

Why the Rule Matters in Estate Administration

For executors, the forfeiture rule creates real practical problems. An executor holds the estate on trust for the beneficiaries entitled under the will or the rules of intestacy. If one of those beneficiaries is suspected of having killed the deceased, distributing their share to them could expose the executor personally.

What this means in practice is that executors often need to:

• pause distribution of the disputed share until the criminal proceedings are resolved or the civil position is clarified;
• seek directions from the Supreme Court about how to deal with the estate;
• consider whether the killer’s share passes to alternative beneficiaries under the will, to the killer’s children, or back through intestacy; and
• deal with jointly owned property, superannuation, and insurance separately, because each is governed by its own rules.

The standard of proof in the civil context is the balance of probabilities. This is important: a beneficiary can be acquitted of a criminal charge and still be found, in later civil proceedings, to have unlawfully killed the deceased for the purposes of the forfeiture rule. Equally, the rule can apply where no criminal charge has ever been laid, for example, where the killer has died before trial.

A Recent NSW Decision

The Supreme Court of New South Wales continues to refine how the rule and the Forfeiture Act 1995 (NSW) operate in difficult family circumstances. A recent decision of the Court illustrates the careful balancing exercise required when the court is asked to modify the rule in a manslaughter case. The Court examined the conduct of the offender, the relationship with the deceased, and the interests of other family members before determining whether the rule’s effect should be modified.

Each case turns on its own facts. The court’s discretion is broad, and outcomes vary considerably depending on the nature of the killing, the offender’s mental state, the wishes the deceased is likely to have held, and the position of other beneficiaries who would gain or lose depending on how the discretion is exercised.

What Happens to the Forfeited Share?

Where the rule applies, the killer is treated, for the purposes of distribution, as if they had not survived the deceased. The consequences depend on the source of the gift:

• Under a will: the gift usually falls to any substitute beneficiary named in the will; if none, it may fall into residue or pass on intestacy.
• On intestacy: the estate is distributed as though the killer had predeceased, which may mean the killer’s own children take in their place, depending on the family structure.
• Joint tenancies: the survivorship rule is displaced, and the deceased’s share is generally held on constructive trust for the estate.
• Superannuation and insurance: trustees of super funds and insurers apply their own governing rules, informed by the forfeiture principle.

These outcomes are not always straightforward, and disputes commonly arise between the offender’s family and the deceased’s wider family about who should ultimately benefit. Where litigation is likely, involving lawyers experienced in early can save significant cost and delay.

What to Do If the Rule Might Affect an Estate

If you are an executor, administrator, or beneficiary and the forfeiture rule may be relevant, your options are broadly these:

1. Get advice before distributing anything. Even a partial distribution can create personal liability if it turns out to have been made to a disqualified beneficiary.
2. Preserve the estate. Assets should be secured and not transferred to the person under suspicion, including jointly held property where possible.
3. Consider the timing. It is often sensible to wait for the outcome of any criminal proceedings, but the civil position can be resolved separately if delay would prejudice the estate.
4. Apply for directions. The Supreme Court can give judicial advice to an executor about how to proceed, which protects the executor from later claims.
5. Consider whether to seek, or oppose, a forfeiture modification order. This applies in manslaughter cases only and is a discretionary remedy under the Forfeiture Act 1995 (NSW).

The interaction between criminal law and estate administration in these matters is unforgiving of mistakes. Getting the sequence and the standard of proof right matters, and so does documenting every decision the executor makes along the way.

If you are dealing with an estate where the forfeiture rule may apply, whether as an executor, a beneficiary, or a family member trying to make sense of a difficult situation, the wills and estates team at Conditsis Lawyers can provide practical guidance grounded in NSW law and recent case authority. Learn more about how we assist with , or to discuss your circumstances in confidence.