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“Where There’s A Will, There’s A Way” – Or Is There? Inheritances And Assisted Suicides

“Where there’s a will, there’s a way” – or is there? Inheritances and assisted suicides

How does the law regard inheritances and assisted suicides? For a long time, our laws have reflected a general belief that a person shouldn’t directly benefit under someone’s will if they’ve also caused their death. This is known as the forfeiture rule.

While it’s easy to see how the forfeiture rule is appropriate in, say, murder cases, in other situations it can seem overly harsh. For example, a woman who helps her husband end his own life after years of suffering from an incurable illness wouldn’t be able to inherit from his estate.

In NSW, the Forfeiture Act (1995) gave courts the power to relax the forfeiture rule, or not apply it at all. But when does that happen? And does a recent Supreme Court of Qld decision have any impact on how NSW courts will choose to exercise their power?

The Queensland case

In a March 2014 the Supreme Court of Qld ruled that a man could not inherit under his friend’s will after he assisted him to suicide – an offence in Qld, as it is in NSW.

The case involved the estate of Francis Ward, who died after taking an overdose of drugs which his friend Merin Nielsen had bought for him in Mexico.

Mr Ward had a degenerative disease and lived in fear of being disabled to the point where he could not function independently. By the time of his death he had lost a great deal of independence. He had also decided several years previously that if his life got to that point, he would want to end it.

Some years before his death, Mr Ward prepared a home-made will which made Mr Nielsen his executor and gave him his whole estate (with a modest value of $140,000).

By the time the Supreme Court made its decision Mr Nielsen had already been charged and convicted with assisting his friend’s suicide and the court found that this was enough to prevent him from inheriting. The court based its view on a 1998 English decision which held that “provided that the death was the result of the crime, then the rule applied”. This applied regardless of whether the crime was violent or not, so it included the crime of assisted suicide.

The Chief Justice of the Qld Court of Appeal also said that it was also irrelevant that the person who assisted the suicide didn’t intend to inherit or that they were motivated to ease suffering.

How this applies in NSW

Before 1995, the legal position in NSW was similar. For example, in a 1994 decision the NSW Court of Appeal applied the forfeiture rule rigidly and found that the motive and intention of the person who contributed to the death were irrelevant. (Troja v Toroja)

In 2002, even after the 1995 changes to the law, a NSW court described the forfeiture rule as “strict and unbending” when it dealt with the estate of the parents of high profile murderer Seth Gonzales. (Gonzales v Claridades).

Mr Gonzales hoped to inherit his parents entire estate after he brutally murdered both of them, as well as his sister. When the court applied the forfeiture rule Mr Gonzales was defending the murder charges against him and wanted access to his parents’ estate in order to pay for his defence.

Shades of grey

Quite plainly, the forfeiture rule was an appropriate response in the Gonzales case. But circumstances are rarely this black-and-white. For instance, what happens where a victim of horrific domestic violence kills their spouse to end their own suffering, or that of their children? Or where a person assists a loved one to take their own life to end their suffering from an incurable illness?

Given that Judges routinely look at decisions made not only in other States, but also sometimes in other countries, it remains to be seen whether NSW courts will take heed of the Qld decision.

After all, it remains a criminal offence in NSW to assist a person to take their own life and the forfeiture rule remains a tangible part of our law.

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