Commentary on Sections Forfeiture Section 12 – Person forfeiting to be treated as having failed to survive victim
45.The forfeiture rule is a rule of public policy which, in certain circumstances, precludes a person who has unlawfully killed another from acquiring a benefit in consequence of that killing. This section provides that in circumstances where a person has forfeited their rights of succession, including prior and legal rights, to the estate of the deceased, their beneficial interest in trust property, or their title to property by virtue of a special destination, they are to be treated as having died before the deceased. This addresses a situation highlighted in a case (called Hunter’s Executors, Petitioners, 1992 SC 474) in which a man murdered his second wife. Her will provided for her estate to go to her husband and if he predeceased her and there was no issue of the second marriage, it was to be divided between his son by his first wife and her own sister. While the murderer clearly forfeited his own benefit under the will, the court was not prepared to go so far as to say that this meant that he had predeceased his second wife. Accordingly, the estate fell into intestacy and passed to the second wife’s sister and parents.