The Public Trustee of Queensland v The Public Trustee of Queensland & Ors [2014] QSC 47

Francis Ward (Mr Ward) died from a deliberate drug overdose on 20 June 2009. By a “home-made” Will dated 5 August 2007, he had revoked a prior Will, appointed Mr Merin Nielsen as his executor, and left his estate to Mr Nielsen as the sole beneficiary. There was no reason to doubt the validity of this Will.

On 16 February 2012 Mr Nielsen was convicted of having assisted Mr Ward to commit suicide and was sentenced to three years imprisonment. Mr Nielsen had travelled to Mexico at the request of Mr Ward, purchased the drug Pentobarbital and provided it to Mr Ward on his return to Australia. Mr Ward subsequently ingested this drug which led to his death.

The Public Trustee argued that Mr Nielsen was not “capable” of acting as executor under the Will, and therefore the Public Trustee was entitled to an order to administer the estate (s 29(1)(b)(iii) Public Trustee Act 1978). It also submitted that Mr Nielsen’s “right” to act as executor arose from his crime and that Mr Nielsen had also forfeited the benefit he would have otherwise received under the Will.

The Public Trustee argued that the estate should be administered as on an intestacy, the effect in this case being that it would be shared equally by Mr Ward’s siblings.

Mr Nielsen submitted that the court should exercise its discretion not to apply the rule of forfeiture due to the nature of the circumstances surrounding Mr Ward’s suicide. For example, that the terminally ill Mr Ward had independently sought the assistance of Mr Nielsen and was aware that Mr Nielsen would benefit from the Will as the sole beneficiary.

In Troja v Troja (1994) 33 NSWLR 269, the New South Wales Court of Appeal affirmed that a person responsible for the death of another cannot be allowed to benefit from that other person’s estate. In that case, the beneficiary had been convicted of manslaughter on the basis of diminished responsibility. The court rejected an argument that it had a discretion as to whether to apply the forfeiture rule or not.

In Dunbar v Plant [1998] Ch 412, the English Court of Appeal held that the common law forfeiture rule was not confined to cases of murder and manslaughter, and extended to assisting suicide.

Chief Justice De Jersey held that in Queensland a person who assists the suicide of someone else cannot act as that person‘s executor, or take an interest in his or her estate. The court has no discretion to modify the application of that rule. Mr Nielsen’s motivation was considered irrelevant.

It was ordered that:

  • pursuant to s 29(1)(b)(iii) of the Public Trustee Act 1978 there be an order granting the Public Trustee to administer the estate of Mr Ward according to his previous Will dated 5 August 2007
  • pursuant to s 6 of the Succession Act 1981 and s 134 of the Public Trustee Act 1978 that the Public Trustee should distribute the estate of Mr Ward as the basis of an intestacy to Mr Ward’s siblings.

Comment: The common law forfeiture rule is not confined to cases of murder and manslaughter. It will clearly apply to assisted suicide. Executors and beneficiaries that aid or assist the willmaker’s suicide will forfeit their “rights” as executors and/or interest as beneficiaries under the Will. The ethical question of degrees of culpability will not be relevant to whether the common law rule of forfeiture should be applied.