Can a Person Convicted of Murder be Prevented from Benefitting Indirectly from the Estate of the Victim

Background

The Supreme Court of Western Australia recently considered an unusual situation, the first of its kind in Australia. The case involved Brent Mack who, in 2012, had been convicted of his mother’s murder and is currently serving a lengthy custodial sentence. At the time of his conviction, the judge found that his main motive was access to his mother’s money. Ms Mack left no Will, so under the State’s intestacy laws, her estate would normally go to her two sons equally, meaning Brent and his brother Adrian Mack would benefit. However, under the Rule of Forfeiture a person cannot benefit from an estate where they are responsible for the death, and so Brent forfeited his share. The Forfeiture Rule is based on the principle that it is against public policy to allow a criminal to claim a benefit by virtue of his or her crime.

As fate would have it, in 2014, Adrian Mack also died without a Will. Under the intestacy laws, his estate would fall to his half-brother, Gary Mack (whose mother was not Ms Mack) and the previously excluded convicted murderer, Brent. Could this be allowed to happen?

Key issues

In 2016, a grant of Letters of Administration of Ms Mack’s estate was made to the State’s Public Trustee. Later that year, a similar grant was made in respect of Adrian’s estate, which consisted almost entirely of the inheritance from his mother. A key issue was that Brent was, in effect, potentially going to inherit, indirectly, a half share of his mother’s estate and in doing so circumvent the Forfeiture Rule. As a consequence, the Public Trustee sought the court’s direction as to whether Brent should benefit in this way.

In Public Trustee (WA) v Mack (2017), the Supreme Court thus had to consider whether Brent Mack could benefit from Ms Mack’s estate with regard to the extent it could be identified as being part of Adrian Mack’s estate.

As Ms Mack died without a Will, the estate fell to be distributed to her two sons under the Administration Act (WA) 1903. Brent Mack was not entitled to inherit from her estate and, as a consequence, his brother Adrian inherited all of it. However, as Adrian had died in 2014, also without a Will, the estate then fell to be distributed to his brother Brent and a half-brother Gary Mack. This was a situation that had not been before a court in Australia previously, so the Supreme Court of Western Australia looked to three US cases in considering its decision, relying on the so-called Slayer Rule. In essence, this Rule is that a wrongdoer cannot benefit even if indirectly from their crime. In calculating inheritance, the effect of the Slayer Rule is that the slayer would be treated as though he or she had predeceased the person who had been murdered. As Master Sanderson explained:

“There appears to be no Australian authority directly on point. Intuitively it would seem to be a logical extension of the rule of forfeiture to hold that a person in the position of Brent, a convicted murderer, could not benefit directly or indirectly as a consequence of his crime. It is difficult to see that any principle of law is offended by that extension. But, as I have said, there is no Australian case on point”.

By way of comparison, in England and Wales, the Estates of Persons (Forfeiture Rule and Law of Succession) Act 2011 amended the law of succession where a person is disqualified from receiving an inheritance by reason of the Rule of Forfeiture. English case law had resulted in inconsistencies and, in some cases, perverse decisions.

In Re DWS Deceased (2001), two grandparents were murdered by their son. As they had died intestate, the court had to decide who should inherit. The Court of Appeal decided that the son of the convicted should not inherit either and instead the estate passed to the grandfather’s sister. This was considered unfair and the Law Commission was asked to consider the matter. The upshot was the 2011 Act, which changes the distribution of property. It adopts the concept of the convicted having predeceased the victim rather than having been disqualified by way of forfeiture. It means that if a person is disqualified from inheriting under the Forfeiture Rule the rights of inheritance of their descendants can continue.

The Supreme Court verdict was delivered on 30^th October. Brent Mack, convicted of his mother’s murder, was not allowed to inherit from his brother’s estate. A wrongdoer cannot benefit, even indirectly, as a result of their crime.

What does it mean?

The extension of the Rule of Forfeiture in this unusual case reflects public policy. Adrian’s estate by-passes Brent, relying on the Slayer Rule from US precedent to underpin the decision.

In this particular case, it was straightforward to identify Ms Mack’s assets in the estate of Adrian Mack as it had been “untouched” with a clear path from the deceased mother’s estate. However, this is unlikely to be always the case. In different circumstances, the ruling might be different.

Once again, these events demonstrate how important it is to make a Will. The intestacy laws may result in a situation that does not accord with your wishes ignoring charities, friends or other preferred beneficiaries. In this case, Ms Mack’s estate ended up with a person not directly related to her – her son’s half-brother Gary. By making a Will reflecting your intentions you have taken the necessary steps to ensure your estate benefits those who you wish to do so.

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Szabo & Associates, Solicitors can offer expert advice on a wide range of legal matters, including making or updating a Will, contesting a Will or arranging a Power of Attorney. Please contact George Szabo on (02) 9281-5088 or fill in our online contact form.