Should a wife who murders her husband be entitled to benefit under the husband’s Will?

The short answer is no. There is a rule, known as the forfeiture rule, which, in this context, prevents a murderer from obtaining a gift under the Will of their victim or by the operation of the intestacy laws.

Without this application of the forfeiture rule, there would be a clear motivation for beneficiaries to murder Will-makers in order to get their gift sooner, or to obtain a portion of the victim’s estate.

This would strike most of us as fair in a general sense.  However, one can easily imagine circumstances where the application of the rule would produce an unjust outcome.  If a wife were to assist a husband to die where the husband had a terminal illness and wished to die, or a wife killed her husband in a motor vehicle accident, people may feel that perhaps the forfeiture rule should not be applied too strictly.

People may feel the same in circumstances where a husband subjected his wife to over a decade of physical abuse and the wife, in order to escape the ordeal, killed her husband in the course of an attack.

In a matter which received some publicity earlier in the year, a woman shot her husband with a spear gun and stabbed him 30 times with a kitchen knife in their family home after he had, that evening, strangled, kicked and punched her repeatedly and threatened to cut off her ears and set her on fire so that nobody would ever look at her again.  This particular incident followed 13 years of horrific domestic violence.

The wife was the sole beneficiary under the husband’s Will and stood to receive, among other things, the former matrimonial home worth nearly $1 million.

The wife was charged with domestic homicide and sentenced to seven years jail, with a minimum non-parole period of four years and nine months.  While she was serving her sentence, the State Trustees in Victoria wrote to her and requested her to give up on her claim on the husband’s interest in the home.  She refused, so the State Trustees in Victoria took her to the Victorian Supreme Court.

The Supreme Court decided that she should not benefit under her husband’s Will because community expectations were that she should not profit in any way from committing a crime, even in these circumstances.

She appealed the decision.  As part of her appeal, her legal team argued that community attitudes towards survivors of domestic violence are now much more sympathetic and, as such, the forfeiture rule should not apply so strictly.  She should, therefore, be entitled to take under her husband’s Will. They also argued that, since she had served time in gaol, she should not be punished again for the same crime.

The Court of Appeal took six months to make a final decision.  It concluded that it could not, in any circumstances, allow a wrongdoer to benefit from committing a wrongful act.  The Court said that, if the law is to be changed to take account of changing community standards, then the Parliament needs to change the law, not the Court.

The Court’s ruling was that the forfeiture rule prevented the wife from receiving anything under the husband’s Will.

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.

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