The Forfeiture Rule: Cleaver v Mutual Reserve Fund Life Association Case Study

What is it?

The forfeiture rule is a rule governed by the common law which prevents a person who has unlawfully killed another from inheriting from their victim or acquiring another financial benefit from the death. It has no statutory basis in Victoria but is nevertheless a well-established rule of public policy which overrides any words of a Will or other legally binding agreements to which the deceased person was party.

Ultimately, the effect of the rule means that one cannot murder their parents or spouse and still expect to inherit.

Cleaver v Mutual Reserve Fund Life Association Case Study [1892]

The rule comes from an old English case held in the English and Wales Court of Appeal.

In this case, a woman was convicted of wilful murder after poisoning her husband. She was sentenced to life imprisonment but quickly assigned her rights under her husband’s life insurance policy to another who attempted to collected it.

The Court held that “the law did not allow the enforcement of rights directly resulting to the person enforcing them from the crime of that person”.[1] This resulted in the public policy of a killer losing the right of inheritance by virtue of a Will, joint tenancy, intestacy and family provision, and the rule was soon developed both within the UK, and externally in Commonwealth countries.

The Canadian Supreme Court quickly expanded the rule so that when a person is found guilty of manslaughter, or if they plead guilty to manslaughter, they will too fall foul of the rule.[2]

The rule was then developed in the UK case of Gray v Barr which applied it as a strict rule of law via the ‘logic test’ where “if the person seeking the benefit was guilty of deliberate, intentional and unlawful violence and death then the Court should not allow the person to take benefit”.[3]

The High Court of Australia in 1940 then soon developed the rule even further, holding that it should be operative even if the accused has been charged with murder or manslaughter and acquitted, so long as if before a civil court, the killing has been proved on a balance of probabilities.[4]

Policy Reform – Battered Women

At current, there is a significant amount of discourse regarding policy reform and battered women. In Hamilton and Sheehy’s legal journal article – Thrice Punished: Battered Women, Criminal Law and Disinheritance,[5] they explain how abused women who kill their male partner are dealt harshly by the legal system and to this effect “thrice punished”. First, by enduring hell in the relationship itself, second in facing the criminal charges whilst most likely suffering the effects of post-traumatic stress and third, when even managing to obtain a conviction for manslaughter rather than for murder, the public policy rule will still inhibit them from inheriting.

After the New South Wales case of Troja v Troja, [6] which saw a battered woman, charged with murder but found guilty of manslaughter being disqualified from inheritance, there have been calls for the rule to not be implemented as rigidly as it historically has been. NSW took head and the Parliament soon passed legislations permitting the courts to modify the harshness of the rule where killing occurred in circumstances of low moral culpability. However, Victoria is yet to follow suit.

Thus, many Victorians argue that the rule is at odds with changes in community attitudes and operates unfairly because it can still be applied inflexibly and without regard to the moral culpability of the person responsible for the unlawful killing. Further, it can have unfair consequences for third parties such as the innocent descendants of the unlawful killer and any person who co-owns property with the unlawful killer and the deceased person as joint tenants.

In October 2013, the Victorian Law Reform Commission was asked to review the common law rule. This resulted in 27 recommendations; however Victoria is yet to see any legal reform.

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[1] Clever v Mutual Reserve Fund Life Association [1892] 1 QB 147 at 156-157
[2] (1895) 24 SCR 650
[3] Gray v Barr [1970] 2 QB 626
[4] Helton v Allen (1940) 63 CLR 391
[5] Barbara Hamilton and Elizabeth Sheehy, Thrice Punished: Battered Women, Criminal Law and Disinheritance, (2014) 8 Southern Cross University Law Review 96.
[6] (1994) 33 NSWLR 269

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