The common law forfeiture rule prevents a person who kills another unlawfully from profiting or benefiting from their crime. Put another way, a person may not unlawfully kill another person to inherit their estate.
From 15 January 2025, South Australian law codifies, extends and reforms the common law forfeiture rule. The Forfeiture Act 2024 (SA):
- extends the forfeiture rule to apply to all forms of homicide recognised by the Criminal Law Consolidation Act 1935 (SA) [see the definition of unlawful killing in s 3]
- allows an administrator or executor of a deceased estate to apply to the Supreme Court for an order specifying whether and to what extent the forfeiture rule applies to the distribution of the estate [s 6]
- clarifies that the forfeiture rule does not apply to a person who a court has determined has killed another unlawfully but was mentally incompetent to commit the offence or stand trial [s 7] (but see next dot point)
- allows an interested person (defined in s 3) to apply to the Supreme Court for an order that the forfeiture rule does apply to someone found unfit to stand trial [s 8]
- allows an offender or an interested person to apply to the Supreme Court for an order that the forfeiture rule be modified or not applied, where exceptional circumstances mean that it is in the interests of justice to modify the application of the rule [s 9]
- allows an interested person to apply to the Supreme Court for an order that a person who has received a benefit due to an unlawful killing be required to give up or repay the benefit (empowering the court to trace the inheritance and rectify any improper benefits applied) [s 12]
- allows an interested person to apply to the Supreme Court for an order that a person whose conviction is overturned on appeal receive the benefit they would have received had they not been convicted for an unlawful killing [s 13].
The Forfeiture Act 2024 (SA) only applies in relation to an unlawful killing that occurs on or after 15 January 2025 [Sch 1 cl 4].
Forfeiture : Last Revised: Fri Dec 20th 2024
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