A New South Wales man who killed both his parents has been granted part of their estate, in a case that could surprise anyone not familiar with the law governing such cases.
On December 3, 2014, the man, who cannot be named for legal reasons, shot his mother and father at close range after a small dispute over a bottle of wine, the ABC reports. He was later found not guilty on the grounds of mental illness and has now been allowed to inherit the money his parents had stipulated for him in their will.
The law that prevents a murderer from profiting from their victims’ estates is called the forfeiture rule, but it can be overturned in certain cases, such as in a case where a domestic violence victim kills their abuser or when a person is found not guilty of murder on the grounds of mental illness.
In New South Wales, the ACT and Victoria, applications can be made to the Supreme Court to forego the forfeiture rule and allow some killers to access to parts of the estate. However, in other Australian states and territories, the forfeiture is binding and cannot be overruled.
According to the ABC, the NSW man now has rights to $100,000 of his parents’ estate, which will be kept in a trust fund for his needs while he is in detention and after he is released. This amount was reduced from $1 million after his sister applied to the Supreme Court to prevent him from accessing his share of their parents’ estate. The man was also granted a total of $120,000 from the estate to cover court costs.
This is not the first time a court has ruled in favour of a mental health patient who killed their parent. In 2016, a Victorian man inherited almost half of his parents $1.1 million estate, having bludgeoned his mother and father to death in 2011, according to a report by The Australian.
According to the publication, each of Smith’s parents left a will, dividing their estate between him and his sister. As he found not guilty due to his mental illness, Smith was exempt from the forfeiture rule.
Shine Lawyers Special Counsel Tracey Ryan told Starts at 60 that if a parent is concerned they could fall victim to the actions of a mentally-ill child, there are steps they can take to ensure their estate is protected in that unlikely event.
“You can’t contract out of the Family Provision Legislation so the best solution if there are concerns is not to own anything in your own name, but to own it in a trust, or jointly with another person that it can pass to directly upon death,” Ryan explained.
“Also ensure there are binding death nominations on superannuations and nominated persons on life insurance policies. This will mean there is nothing in the estate to get.”
Additionally, a person could add a clause to their will stating that anyone responsible for their death is banned from inheriting part of their estate, but Ryan cautioned this option comes with risks.
“A judge could potentially rule against that if they consider it against social policy and the child could still potentially make a family provision claim against the estate if they are considered an eligible applicant,” Ryan said.
On the forfeiture law itself, Ryan added: “There is a general understanding by most in the legal community that it is a positive rule and it aligns with the common-held view that one should not benefit financially from their crimes.”