Friday 29th April 2022 from 9am

Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

Convicted Murderer Gerard Baden – Clay to Forfeit Rights to Wife`s Estate


What happens to the law of inheritance when a husband murders his wife? Senior Associate, April Kennedy, discusses these issues in this high profile case.

The late Allison Baden-Clay’s father, Geoff Dickie, recently filed a formal application to the Queensland Supreme Court seeking a declaration his son-in-law Gerard Baden-Clay not be entitled to receive any financial benefit from her death.

In April 2012 the disappearance of Allison Baden-Clay rocked the sleepy Brisbane suburb of Brookfield in Queensland. Allison’s body was found on a creek bank under Kholo Bridge Crossing at Anstead in Brisbane’s west, 10 days after she disappeared. She was reported missing by her husband and the police investigation followed. Gerard Baden-Clay was the prime suspect in her disappearance and was subsequently charged with her murder in June 2012.

In July 2014, Gerard Baden-Clay was found guilty of murdering his wife and given a life sentence for his crime in the Queensland Supreme Court after a defended jury trial. In December 2015, Baden-Clay’s lawyers successfully argued that he unintentionally killed his wife during an argument and the murder conviction was downgraded to manslaughter by the Queensland Court of Appeal, much to the dismay of the wife’s family, and the nation. The Queensland Director of Public Prosecutions (DPP) appealed against the decision of the Court of Appeal to the High Court and the murder conviction was ultimately reinstated by the High Court in August last year, giving the family a sense of finality to their protracted suffering. Justice appeared to have been done.

Prior to the murder, Mr and Mrs Baden-Clay prepared wills early on in their relationship appointing each other as sole executor and beneficiary. Baden-Clay was appointed the sole executor and beneficiary of his late wife’s 1997 will. After Baden-Clay’s murder charge the Supreme Court gave Allison’s father temporary control of her estate which included her life insurance policies. If Baden-Clay was acquitted of her murder then he would resume his role as executor of her estate. His conviction means her parents can seek a permanent order granting them control of her estate. Allison’s estate is said to consist of two life insurance policies amounting to almost $800,000, which was ordered to be held in trust by the court pending the outcome of Baden-Clay’s trial. There is a further superannuation account amounting to approximately $236,000.

Allison’s father was successful in his application to remove his son-in-law as executor of his daughter’s will as a result of Baden-Clay’s murder conviction. Mr Dickie was made the sole administrator of his late daughter’s estate by the Supreme Court of Queensland in Brisbane on Thursday 23 February 2017. The grant was issued after Allison’s father filed an uncontested application for administration of her estate, including her life insurance and superannuation policies, in early February.

The decision by the High Court confirming the murder conviction essentially disqualifies Baden-Clay from acting as the executor of his late wife’s will, as well as receiving any financial payment from her estate as a beneficiary. This is what is referred to as the ‘forfeiture rule’. It is an established principle of law in Australia that any “person who is criminally responsible for the death of another forfeits their right to take property to which they would otherwise be entitled upon the death of another person for whose death they are responsible”. In essence, if a person is convicted of the murder (or manslaughter) of another person then they cannot legally inherit from that person’s estate. The rule of law being that no man can benefit from his own crime. The act of doing so is considered ‘disentitling conduct’, being conduct that permanently disqualifies a person from benefiting from the estate of another. The person is also excluded from benefiting from assets which don’t necessarily form part of the estate i.e. as a result of joint tenancy and payment of life insurance or superannuation proceeds. Queensland does not have specific legislation dealing with this and follows the common law which is in line with the above statement. New South Wales has legislation covering this issue which is designed to give the Supreme Court discretion to allow some offenders access to the estate in certain circumstances (Forfeiture Act 1995). For example where a victim of long term domestic violence snaps and kills a person, they may be able to apply for forfeiture modification orders within 12 months of the death (or later with leave). Recent amendments also allow people who are acquitted on the grounds of mental illness to apply.

Another form of disentitling conduct which relates to, but is distinguishable from, the above is assistance in a suicide. The concept of assisted suicide, or euthanasia, is controversial at best. Take for example a daughter assisting her father in ending his life after a painfully drawn out illness. Such an act might attract a conviction of manslaughter, or perhaps murder, essentially disqualifying her from inheriting under her father’s will. This might be viewed as unfair given the circumstances however the Court in Queensland does not consider the moral culpability of the person assisting in a death under the forfeiture rule. In past decisions, the motive and intention of the person who contributes to the death has been deemed irrelevant.

In the Baden-Clay case, the forfeiture rule applies to the husband and would have applied even if his murder conviction was downgraded to manslaughter. There was argument that the motive behind Allison’s murder was the financial benefit Baden-Clay would receive from her estate. This was ultimately rejected by the Court and would, in any case, be deemed irrelevant by the Court under the forfeiture rule. Mr Baden-Clay has been disqualified from receiving any benefit from his wife’s superannuation and life insurance policies, as well as inheriting from her estate under the will. Allison’s father has been appointed by the Supreme Court as the administrator of his late daughter’s $1 million dollar estate, which is set to be inherited by her three daughters. It appears justice has prevailed.

We welcome any enquiries or comments in relation to these issues.  You are welcome to contact our office with any enquiries concerning estate planning advice.  Please contact our  Wills and Estates Department Manager, Donna Tolley on direct line 07 55068241, email or free call 1800 621 071.  We have a dedicated specialist Wills and Estates team that practice exclusively in this complicated area.

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april kennedy estate litigation lawyer

April Kennedy

Special Counsel
Estate Litigation

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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