C41/2005 Application of the Forfeiture Rule

DATE OF ISSUE:  17 November 2005

Application of the Forfeiture Rule

Purpose

This instruction is to alert Disability Compensation State Office staff to what the forfeiture rule is and how to apply it, where the veteran's death is attributable to the dependant.

Forfeiture rule

The forfeiture rule, also known as a 'rule of public policy', is a common law principle, which provides that a person responsible for the death of another person should not be able to gain through inheritance from that person.

The forfeiture rule also applies to benefits payable under statutory schemes in circumstances where the beneficiary has wrongfully caused the death and then stands to benefit under a legislative provision as a result of that person's death.

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Application of the forfeiture rule

The Commission has issued guidelines (copy attached) to be used in the application of the forfeiture rule in relation to benefits payable under the VEA. The Commission has directed that any cases involving the possible application of the forfeiture rule are to be forwarded for the determination by the Division Head, Compensation & Support Division, National Office.

Procedure

The possible application of the forfeiture rule must be considered in all cases where it appears the veteran's death is attributable to a dependant of that veteran.

The file should be forwarded to VEA Compensation Policy Section (VCP), National Office.  The details forwarded should include:

  • a summary of information relating to the death of the veteran;
  • the nature of any conviction or charge relating to the death of the veteran;
  • other information that may point to the dependant being involved in the death of the veteran; and
  • all other relevant information.

The VCP Section will then prepare a submission for the consideration of the Division Head Compensation & Support Division.

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Process for applying the forfeiture rule

The following procedures have been developed for the assessment of forfeiture rule cases:

The Department commences by investigating all evidence relevant to the circumstances of the veteran's death and the dependant's role in that death.  This includes consideration of judgements handed down by criminal courts (on verdict, sentencing and any appeals) as well as Coroner's reports and any other relevant documentation.  The dependant remains in payment of the benefit at this stage.

a) For cases where an automatic grant of entitlements to the dependant has occurred.

If a prima facie case exists for the application of the forfeiture rule, the case should be referred to the VEA Compensation Policy Section, National Office.  The dependant will be contacted and informed that the Commission is intending to re-examine the dependant's entitlement to that benefit on the basis of the forfeiture rule.  At this stage, in cases where the forfeiture rule may be applied to those in receipt of an automatic grant of war widow's pension, the dependent will be advised to lodge a claim under Section 14 of the Veterans' Entitlements Act 1986 (VEA) in order to provide appeal rights.  They will also be provided with an opportunity to “show cause” why the forfeiture rule should not be applied.  The dependant will remain in payment of the benefit at this stage.  If the dependant does not lodge a claim under VEA Section 14 and the forfeiture rule is applied, the dependant does not have any right of appeal.

b) For cases where there is NO automatic grant of entitlements to the dependant.

If a prima facie case exists for the application of the forfeiture rule, the case should be referred to the VEA Compensation Policy Section, National Office.  The dependant will be contacted and informed that upon making an application for the benefit the Commission is intending to examine the dependant's entitlement to that benefit and possibly to apply the forfeiture rule.  They will also be provided with an opportunity to “show cause” why the forfeiture rule should not be applied.

A delegate of the Repatriation Commission (Division Head, Compensation & Support Division, National Office) will then determine the applicant's claim under section 19 (3) of the VEA.  If the delegate then applies the forfeiture rule, the benefit is ceased and recovery action is taken (if necessary).  The dependant still has a right of appeal.  If the forfeiture rule is not applied, then payment of the benefit is made or continues whichever applies and no further action is required.

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Contact

If you have any queries regarding the above information or procedures please contact Brian Eastman on (02) 6289 6348 or email brian.eastman@dva.gov.au

Carolyn Spiers

Branch Head

Veterans' Compensation

    November 2005


COMMONWEALTH OF AUSTRALIA

VETERANS' ENTITLEMENTS ACT 1986

GUIDELINES FOR THE APPLICATION OF THE FORFEITURE RULE

PURPOSE

The purpose of these guidelines is to assist the Repatriation Commission (“the Commission”) and its authorised decision-makers in determining whether or not to apply the forfeiture rule in order to divest a person of a benefit to which that person is otherwise entitled under the Veterans' Entitlements Act 1986 (VEA).

AUTHORITY

These Guidelines have no binding legal authority, they are an administrative tool designed to guide the Commission in circumstances to which the forfeiture rule might apply.

WHAT IS THE FORFEITURE RULE?

The forfeiture rule, also known as the 'rule of public policy', is a common law principle which provides that the person convicted of the death a person should not be able to gain through inheritance from that person; Clever v Mutual Reserve Fund Life Association [1892] 1 QB 147.

The forfeiture rule has also been held to apply to benefits payable under statutory schemes in circumstances where the person responsible for the death of a person stands to benefit under a particular piece of legislation due to that person's death; R v National Insurance Commissioner; ex parte Connor [1981] 1 QB 758.  The Department is in possession of legal advice from the Australian Government Solicitor that suggests the forfeiture rule is able to be applied in relation to disability pensions and war widow's pension payable under the VEA.

As such, the forfeiture rule allows the Commission to refuse to provide benefits to a person (“the beneficiary”) who otherwise has a valid entitlement under the VEA, where that entitlement arises by virtue of the beneficiary having caused the death of another person.

CRITERIA FOR THE APPLICATION OF THE FORFEITURE RULE

In determining whether the forfeiture rule should be applied in any given situation, the Commission will have regard to the particular circumstances of each case.  Generally, the forfeiture rule will not be applied until after a person has been before the courts and has been both convicted and sentenced.  The material before the court (and any statements made by the courts) will be crucial material in the decision-making process to determine whether the forfeiture rule should be applied.


In general the following criteria will be considered:

  1. Conviction for murder

Prima facie, the forfeiture rule should be applied in all cases where a person (“the beneficiary”) seeks to obtain an entitlement under the VEA which has arisen because:

  1.                                                                  the beneficiary has wrongfully caused the death of another person; and

  1.                                                                the beneficiary has been convicted of murder in accordance with the law of a State or Territory as a result of having wrongfully caused that death.

  1. Conviction for wrongful death (other than murder)

The forfeiture rule should also be considered where a beneficiary seeks to obtain an entitlement under the VEA which has arisen because:

  1.                                                               the beneficiary has wrongfully caused the death of another person (“the victim”); and

  1.                                                              the beneficiary has been convicted in a criminal court of the offence of wrongfully causing the death (however described) in accordance with the law of a State or territory.

In this situation, the decision-maker will need to decide whether or not the forfeiture rule should be applied having regard to whether it is seen as being unconscionable for the beneficiary to receive a benefit under the VEA in the particular circumstances of the case.

The decision-maker should have regard to all of the circumstances of each individual case, including the following factors which indicate the extent to which the beneficiary should be held morally culpable for his or her crime.  This goes to the degree of criminality of the actions of the beneficiary.  The factors to be considered include:

  1. did the beneficiary intend to kill, seriously harm or otherwise frighten or intimidate the victim;

  1. what was the nature of the relationship between the beneficiary and the victim including whether the relationship involved mental or physical abuse or other relevant circumstances;

  1. the beneficiary's perception of the crime.  For instance did the beneficiary believe that his/her actions were justified or necessary, was the beneficiary subject to coercion or otherwise acting under some form of duress which may serve to diminish the beneficiary's degree of moral culpability.

  1. What action was taken by the court including any comments made by the court in relation to the sentencing of the beneficiary.  For instance did the beneficiary receive a nominal or otherwise reduced sentence.

CONVICTIONS RECORDED IN COUNTRIES OTHER THAN AUSTRALIA

This guideline applies to murder and wrongful death convictions in countries other than Australia.

DECISIONS INVOLVING THE APPLICATION OF THE FORFEITURE RULE

Any cases involving the possible application of the forfeiture rule are to be forwarded to National Office for determination by the Division Head, Compensation and Support Division.

ADOPTION OF GUIDELINES

These guidelines apply to all cases involving the application of the forfeiture rule.

Dated this                day of                          2005

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MARK SULLIVAN — GARY COLLINS — SIMON HARRINGTON

President — Acting Deputy President — Commissioner

Source URL: https://clik.dva.gov.au/compensation-and-support-reference-library/departmental-instructions/2005/c412005-application-forfeiture-rule