Reforming the Forfeiture Rule in Victoria

Yi Sun

doi:10.54254/2753-7048/2025.LD24919

Lecture Notes in Education Psychology and Public MediaOpen access

Reforming the Forfeiture Rule in Victoria

Research Article

Open Access

Reforming the Forfeiture Rule in Victoria

Yi Sun ^1*

¹ Monash University

^*Corresponding author: attorneysunking@gmail.com

Published on 11 July 2025

LNEP Vol.107

ISSN (Print): 2753-7056

ISSN (Online): 2753-7048

ISBN (Print): 978-1-80590-273-7

ISBN (Online): 978-1-80590-274-4

Download Cover

Abstract

This paper examines the operation and shortcomings of the common law forfeiture rule in Victoria, Australia, which precludes individuals from inheriting the estate of someone they have unlawfully killed. While the rule is grounded in a strong moral principle—that one should not benefit from their own wrongdoing—it has proven to be rigid and overly simplistic in complex succession cases. The paper contrasts the Victorian approach with that of New South Wales, where the Forfeiture Act 1995 provides courts with statutory discretion to grant relief based on contextual factors such as intent, relationship with the deceased, and mitigating circumstances. Through a comparative analysis of key cases and statutory frameworks, the study argues that Victoria’s exclusive reliance on common law is no longer tenable. It contends that introducing a statutory model, akin to the New South Wales regime, would enhance both fairness and clarity in the administration of succession law. The paper concludes that legal reform is necessary for Victoria to respond more justly to morally complex scenarios without abandoning the deterrent effect of the forfeiture rule.

Keywords:

Forfeiture Rule, Succession Law, Legal Reform, Comparative Law, Public Policy

View PDF

References

[1]. Court of Queen’s Bench. (1892). Cleaver v Mutual Reserve Fund Life Association, 1 QB 147.

[2]. Australian Bar Review. (2016). Administration of intestate estates [Editorial]. Australian Bar Review, 43, 142.

[3]. Supreme Court of Victoria. (1972). Re Giles (deceased), [1972] VR 353.

[4]. Davis, R. (2021). Application of the common law forfeiture rule to the unlawful killing of a joint tenant. Australian Property Law Journal, 29(3), 241–259.

[5]. Parliament of New South Wales. (1995). Forfeiture Act 1995 (NSW).

[6]. New South Wales Law Reform Commission. (2003). Report 95: The Forfeiture Rule. NSWLRC.

[7]. Victorian Law Reform Commission. (2013). Succession Laws: Consultation Paper. VLRC.

[8]. Supreme Court of Victoria. (1997). Re Estate of Soukup, [1997] VSC 143.

[9]. Supreme Court of New South Wales. (2001). Public Trustee v Hayles, [2001] NSWSC 59.

[10]. Supreme Court of New South Wales. (1994). Troja v Troja, 33 NSWLR 269.

[11]. Supreme Court of New South Wales. (1994). Troja v Troja (No 2), 33 NSWLR 299.

[12]. Burns, F. (2022). Varying the forfeiture rule: The decision in Re Settree Estates. Research and Practice in Estate Planning, 23(3&4), 29–38.

[13]. Supreme Court of New South Wales. (2010). Estate of Sharpe, [2010] NSWSC 1426.

[14]. Supreme Court of New South Wales. (2022). Re Settree Estates; Robinson v Settree, [2022] NSWSC 1329.