A recent case in Australia has dealt with Succession and entitlements where the abused spouse killed her husband and then committed suicide. With family violence on the rise the issues are more relevant than ever.
In Kumar [2017] VSC 81, the Victorian Supreme Court was tasked with ascertaining two matters. They firstly had to ascertain who had died first and secondly if wife survived was she entitled to any of the estate under the forfeiture rule.
The case was bought before the Court by the parents of the deceased husband who were applying for a Grant of Administration in his estate. The Estate had a net value of approximately $290,000.
On the first issue, the medical evidence was such that the wife was found hanging from her carport. The husband was found on a bed with various stab wounds and blunt force wounds to his head. The initial police report found it to be a case of Murder-Suicide. The husband at the time of his death was aged 36 and the wife 30. In Victoria under the Property Law Act 1958, the order of deaths, when evidence is uncertain, is presumed to be in order of seniority. In this case the Judge could not definitely determine given the medical evidence on actual time of death, given the husband may have bled out over time, that the wife survived the husband based on her age.
In this situation the Court now had to determine whether the Forfeiture Rule applied which would mean the wife’s estate would not have been entitled.
The forfeiture rule is based upon the basic principle that no one can obtain any rights resulting to them by their own crime. The rule has been applied generally in terms of actual Murder. Various courts have not quite followed this in instances of manslaughter or family violence. In Victoria the positon was clarified recently in Edwards v State Trustees Ltd [2006]. The Court of Appeal held in this case that “the nature of a particular crime determines the application of the principal”. The position was put to the Court that in defensive homicide cases of manslaughter, consideration of the rule was needed on a case-by-case basis. The Court of Appeal rejected that position and concluded that the forfeiture rule must apply strictly. They held that the application of the rule is not discretionary.
In this case then as no actual police charges were laid against the wife, and no criminal trial held in her absence the Court had to determine if she in fact murdered her husband or if she didn’t is her criminal culpability such that the forfeiture rule still applies.
Having heard numerous submissions as to past violence within the marriage and evidence to the contrary from the parents of the husband the Court inferred that the wife genuinely believed that she had to attack the deceased violently in order to defend herself from death or really serious injury. In that situation her conduct did not amount to murder. Having concluded in such fashion the Court then had to ascertain whether her criminal culpability was such that the forfeiture rule should apply.
A distinction was made in this case between offenders who in a fit of rage/fear of life strike back in self-defence mode and those that may attack when the spouse is sleeping or unable to defend themselves. That is notwithstanding that the circumstances preceding the vent may have been similar. As the wife in this case had attacked her husband violently whilst he was in bed (in all likelihood asleep) the Court found that she had killed him in an act of unlawful homicide and that as a result her criminal culpability was such that the forfeiture rule applied. The Court ordered that A Grant of Administration be made in favour of the parents of the husband.
I imagine sadly that these cases may become more and more frequent in the future…