Modification of Forfeiture Rule in fatal road accident

MICHAEL and Wendy are involved in a motor vehicle accident. Wendy sustains serious injuries and unfortunately passes-away.

They have a 10-year-old son.

Michael is charged with dangerous driving occasioning death and enters a plea of guilty. Michael is sentenced to a term of imprisonment of three years.

Wendy died without leaving a will and therefore, Michael is entitled to the whole of her estate based on the “rules of intestacy”.

However, the “forfeiture rule” prevents a person who has unlawfully killed another person from receiving a benefit.

When released from prison, Michael makes an application to the Supreme Court, asking the Court to “modify” the forfeiture rule and make orders that he is entitled to Wendy’s estate.

Wendy’s parents oppose the application and the matter proceeds to a hearing.

The Court finds that the tragic accident was in no way premeditated and not caused by Michael’s actions, nor did Michael intend to benefit from the accident.

The Court rules that in circumstances where Michael had demonstrated real remorse, that he is entitled to receive the whole of Wendy’s modest estate and on a discretionary basis, the Court therefore decides to modify the forfeiture rule accordingly.

The Court grants administration of the estate to Michael so that he can finalise Wendy’s estate.

The Court makes the orders on the basis that the parties agree to establish a trust fund, consisting of 50% of Wendy’s superannuation, for the benefit of their son.

The New South Wales Trustee and Guardian is directed to hold the son’s entitlement until he attains the age of 18 years.

Michael is ordered to pay the legal costs out of Wendy’s estate.

If YOU would like a particular issue addressed, please email Manny at manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.

 

By Manny WOOD, Solicitor