Wills & Estates Law Update: the Forfeiture Rule and witnessing a will

Unlawful killings and applications to modify the Forfeiture Rule

The forfeiture rule is the unwritten rule of public policy that precludes a person who unlawfully killed another person from acquiring a benefit in consequence of the killing.

On any application to modify the forfeiture rule, the conduct of an offender which is to be considered is such conduct which has some bearing upon the circumstances in which the deceased was killed and the culpability of the offender. This was decided by Justice Palmer in the case of Straede v Eastwood [2003] NSWSC 280.

In Straede's case the offender was the husband of the deceased. He killed his wife in a motor car accident. He pleaded guilty and was convicted of dangerous driving causing death.

The forfeiture rule precluded the offender from receiving under the Will of the deceased a life estate in a property owned by the deceased as well as half the residue of her estate. He was also precluded from acquiring by survivorship any part of the interest of the deceased in a property in which the deceased, the offender and another person named Truda were joint tenants.

The offender applied to the Supreme Court for the forfeiture rule to be modified. The application was opposed by the sister of the deceased. She also represented other beneficiaries of the estate of the deceased who would benefit from the application of the forfeiture rule.

The main issue raised against the offender was his immoral conduct. The offender had lived for many years in a sexual relationship with his wife and another woman, Truda. The deceased commenced a sexual relationship with Truda. Truda then came to live with the deceased and the offender. They all shared the same bedroom. However, this relationship continued for years after the deceased wished for it to cease. The offender married Truda after the deceased was killed.

Justice Palmer found that the immoral conduct of the offender and Truda was not connected to the killing of the deceased by the offender. Justice Palmer gave 3 reasons for rejecting the submission that the community would disapprove if the forfeiture rule was modified in this case:

First, the Court should not censure the offender's lack of marital fidelity, when the deceased had instigated their relationship with Truda and continued for 20 years to live in that relationship until she died.

Secondly, the deceased made substantial provision for the offender in the Will which she made 6 months before she died despite her disapproval of his relationship with Truda.

Thirdly, the modification of the forfeiture rule in this case was consistent with legislation such as -

• the range of dependents entitled to bring claims under the Family Provision Act 1982,
• the rule of intestacy which favours a de facto spouse instead of a husband or wife, and
• the rules for adjustment of interests in property in the Property (Relationships) Act 1984.

Justice Palmer also rejected the submission that in this case the Court should consider the needs of other beneficiaries in determining whether to modify the forfeiture rule. He stated that an application under the Forfeiture Act is not an opportunity for the Court to make changes to the Will as it might do in an application under the Family Provision Act.

However, Justice Palmer also stated that in other cases, the needs of beneficiaries may be a relevant consideration where the culpability of the offender in the killing of the deceased was such as might move the Court to consider whether partial modification should be made.

Witnessing a Will

A witness to a Will needs no special qualification for the task, however, the selection of witnesses requires special care.

A recent case is an object lesson to Willmakers and their advisors alike that a witness chosen for convenience sake may be a costly mistake.

In McKinney-v-Campbell; Estate Campbell [2003] NSWSC 244 (3 April 2003), the Supreme Court considered the fallout from the use of a will kit by a woman with bad legs whose adult children hit upon the kit as a solution to her difficulty in making the trip to a solicitor.

The Court heard evidence that the family followed the directions with the kit, but they were not alerted to the modern law on the principle handed down from the age-old Statute of Frauds: the spouse of a beneficiary under a Will, alike the beneficiary, is not a credible attesting witness.

In McKinney, the Willmaker's signature was witnessed by the husband of her daughter who, it was planned, was to share equally with surviving siblings in the estate. However, when it came to proving the Will, the Court would not recognise the hapless daughter's entitlement and she had no option but to commence legal action against her executor brother in order to right the wrong from the oversight. Her claim to the estate was suspect and she carried the burden of demonstrating to the Court why her mother's gift to her should not be void.

After hearing all the evidence the Court found in the daughter's favour. It was satisfied that the Willmaker knew and approved of the gift to the daughter and it was gifted freely and voluntarily. The daughter was able to claim her rightful inheritance, however, with the Court also determining she should bear the costs of the application, her gift came at a price.

The often overlooked message for Willmakers and those advising them is to guard against a Will being witnessed by someone who stands to gain under its terms. On top of that, experience shows that the best choice of witness is someone who years later can still be found if the signing of the Will comes into dispute.