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.


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.