Mur­der and inher­i­tance – the $40 bot­tle of wine story

Every­body knows the basic rule – a per­son must not kill anoth­er. When it comes to deal­ing with the estates of vic­tims of an unlaw­ful killing, that rule becomes – a per­son shall not kill and inher­it. In this arti­cle, we explore the appli­ca­tion of the for­fei­ture rule to inher­i­tance from a deceased estate. 

It is a gen­er­al rule that a per­son shall not obtain any ben­e­fit that flows from their unlaw­ful killing of anoth­er. This is known as the for­fei­ture rule. Fur­ther, the for­fei­ture rule oper­ates to pre­vent oth­er per­sons from claim­ing a ben­e­fit through the offend­er. An exam­ple of this is where an offend­er unlaw­ful­ly kills anoth­er with an intent to trig­ger an inher­i­tance for their chil­dren from the vic­tim’s estate.

In New South Wales, the for­fei­ture rule is now defined in sec­tion 3 of the For­fei­ture Act 1995 (NSW) (For­fei­ture Act) as the unwrit­ten rule of pub­lic pol­i­cy that in cer­tain cir­cum­stances pre­cludes a per­son who has unlaw­ful­ly killed anoth­er per­son from acquir­ing a ben­e­fit in con­se­quence of the killing”. 

We take a look at two recent Aus­tralian cas­es that exam­ine the for­fei­ture rule. 

Re Set­tree Estates, Robin­son v Set­tree [2018] NSWSC 1413

First, we con­sid­er the mat­ter of Re Set­tree Estates, Robin­son v Set­tree [2018] NSWSC 1413. This was a trag­ic case where a dis­pute over a $40 bot­tle of wine result­ed in Scott Set­tree killing his par­ents, Mr and Mrs Set­tree with a shot­gun. It is impor­tant to note that Scot­t’s crim­i­nal tri­al result­ed in a ver­dict of not guilty of mur­der by rea­son of men­tal illness. 

Mr and Mrs Set­tree had wills which in the cir­cum­stances meant that Scott and his sis­ter, Wendy, were to share the par­ents’ com­bined estate of $2 mil­lion equal­ly. Wendy, as the execu­tor of her par­ents’ estates made an appli­ca­tion to the Court under the For­fei­ture Act in rela­tion to Scot­t’s inheritance. 

Sec­tions 5 and 11 of the For­fei­ture Act pro­vide the Supreme Court with a dis­cre­tion regard­ing for­fei­ture orders. Sec­tion 11 which specif­i­cal­ly applies to per­sons found not guilty of mur­der by rea­son of men­tal ill­ness sets out the rel­e­vant fac­tors which include:

  • con­sid­er­a­tion as to whether jus­tice requires the rule to be applied as if the offend­er had been found guilty of murder;
  • the con­duct of the offender;
  • the con­duct of the deceased person; 
  • the effect of the appli­ca­tion of the for­fei­ture rule on the offend­er or any oth­er per­son; and
  • such oth­er mat­ters that the Court con­sid­ers material. 

In find­ing that jus­tice required the for­fei­ture rule to be applied to Scott, the Lind­say J con­sid­ered the fol­low­ing matters:

  • the con­duct of Scott – Scott admit­ted that he intend­ed to kill his par­ents, despite being found not guilty by rea­son of men­tal ill­ness under the crim­i­nal law. There was an ele­ment of pre­med­i­ta­tion and he con­tem­plat­ed his par­ents’ deaths in terms of ben­e­fit to him­self. Scot­t’s his­to­ry of domes­tic vio­lence, drug use and heavy drink­ing were also relevant;
  • the con­duct of the vic­tims – after the dis­pute about the $40 bot­tle of wine arose, Mrs Set­tree ordered Scott to move out of their home. Mr and Mrs Set­tree did not pro­voke Scott; 
  • the effect of the for­fei­ture rule on the defen­dant – the for­fei­ture rule would deprive Scott of his inher­i­tance of about $1 mil­lion which will leave him total­ly depen­dant on the gov­ern­ment for his needs; 
  • the effect of the for­fei­ture rule on oth­er per­sons – if the for­fei­ture rule is to be uncon­di­tion­al­ly applied, it would be result in Wendy receiv­ing all of her par­ents’ estate, mean­ing that if any pro­vi­sion were to be made for Scott, it would essen­tial­ly be at the expense of Wendy; 
  • oth­er mate­r­i­al mat­ters – Scot­t’s chil­dren had dis­claimed any inter­est in their grand­par­ents’ estate and dis­tanced them­selves from their father. The Court also recog­nised the pub­lic revul­sion in Scot­t’s actions. Although in deten­tion under State care, Scott can­not lack access to con­sum­ables and lacks funds for the ordi­nary con­tin­gen­cies of life. 

Although Scott did not make any claim for pro­vi­sion from his par­ents’ estates, the Court made a con­di­tion­al for­fei­ture order result­ing in Scott receiv­ing $50,000 from each of his par­ents’ estates (a total of $100,000) with the funds to be held on trust for Scott by the NSW Trustee and Guardian. Fur­ther the Court ordered that the trust can­not be ter­mi­nat­ed with­out leave of the Court. This is to pre­vent Scott from claim­ing at some future date that he is enti­tled to ter­mi­nate the trust and take con­trol of the property. 

Pub­lic Trustee (WA) v Mack [2017] WASC 325

The sec­ond case is Pub­lic Trustee (WA) v Mack [2017] WASC 325 which con­cerns an indi­rect appli­ca­tion of the for­fei­ture rule. In Decem­ber 2008, Brent Mack killed his moth­er, Ah Bee Mack. A for­fei­ture order was made in 2014. As a result of the for­fei­ture order, Adri­an Mack, Bren­t’s broth­er inher­it­ed all of Ah Bee’s estate. Adri­an died in July 2014 with­out a will, mean­ing the two peo­ple enti­tled to inher­it Adri­an’s estate were Brent and a half-broth­er, Gary Mack. The admin­is­tra­tor of Adri­an’s estate sought orders as to the dis­tri­b­u­tion of the part of Adri­an’s estate inher­it­ed from Ah Bee Mack. 

Before this deci­sion, there were no Aus­tralian cas­es con­cern­ing an indi­rect appli­ca­tion of the for­fei­ture rule, though the judg­ment referred to var­i­ous Amer­i­can cas­es on the point. The Court stat­ed: 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 mur­der, could not ben­e­fit direct­ly or indi­rect­ly as a con­se­quence of his crime.” 

The Court then went on to find that as there was no sig­nif­i­cant mod­i­fi­ca­tion to Adri­an’s estate for any rea­son which made iden­ti­fi­ca­tion the prop­er­ty he inher­it­ed from Ah Bee dif­fi­cult, direc­tions should be made to ensure that Brent does not ben­e­fit by his crim­i­nal con­duct. That is, Brent could not inher­it prop­er­ty from Adri­an’s estate which was derived from Ah Bee’s estate. The Court also not­ed that there may be some doubt whether the indi­rect for­fei­ture rule would apply in cas­es where a sig­nif­i­cant peri­od of time had elapsed between the unlaw­ful killing and the pass­ing of the prop­er­ty to the offender. 


In short, when a per­son unlaw­ful­ly kills anoth­er, the for­fei­ture rule will apply to pre­vent the offend­er from direct­ly inher­it­ing prop­er­ty from the vic­tim. Fur­ther, the for­fei­ture rule has been extend­ed to cas­es of indi­rect inher­i­tance, to pre­vent the offend­er from inher­it­ing prop­er­ty from the vic­tim if that vic­tim’s prop­er­ty forms part of anoth­er per­son­’s estate that the offend­er stands to inherit.