As Australia’s population rapidly ages euthanasia is becoming an ever more pressing issue. Some people who advocate euthanasia are already at a stage in their illness where they require assistance to take the own lives. This puts any person assisting to bring about the death who is also a beneficiary of the estate in a difficult legal position. Not only do they risk criminal prosecution but it can affect their position as a beneficiary of the estate of the person wishing to die.
It is a long standing rule of the common law that “a man shall not slay his benefactor and thereby take his bounty”. This is known as the Forfeiture Rule. The effect of the rule is that where a person is criminally responsible for a death of another and they stand to benefit from the victim’s will or through the laws of intestacy, they are prevented from receiving any benefit from the victim’s estate.
Consider this example:
A husband and wife have been married for forty years. They have a son. In his will, the husband leaves the whole of his estate to his wife and if she does not survive him, everything goes to their son. The husband, in the last stages of his battle with cancer, decides to take his own life. The trouble is that he is so weak that he requires his wife to administer the drugs that will kill him. His wife assists in the death and is later tried and found guilty of the murder of her husband but is given a suspended sentence. If the Forfeiture Rule is strictly applied, it will prevent the wife from inheriting her husband's estate. Instead, the estate will pass to their son. Depending on your views on euthanasia, you may or may not think this is fair.
Regardless of your views on euthanasia, sometimes a strict application of the Forfeiture Rule might be seen to operate harshly, and in 1995 the NSW Government enacted the Forfeiture Act. The Act gives the Supreme Court the power and discretion, where justice requires it, to modify the application of the Rule.
Under Section 5 of the Act any interested person can make an application to the Supreme Court for an order modifying the effect of the Rule. An interested person is a party who stands to benefit from the victim’s estate who is not, according to Section 10 of the Act, the offender or a person claiming through the offender.
In considering whether justice requires that the effect of the rule should be modified the Court will have regard to:
a) the conduct of the offender,
b) the conduct of the deceased person,
c) the effect of the application of the rule on the offender or any other person,
d) such other matters as appear to the Court to be material.
As a result of the Act it is now up to the Court to decide, based on the example set out above, to decide whether to allow the wife to benefit from the husband's will.
Matters concerning estates, in particular the application of the Forfeiture Act, can be complex. If you require advice in relation to an estate matter please contact Dominic Wilson on 02 8268 4000.