Rule of Forfeiture Extended: Supreme Court Upholds American Authority That You Cannot Indirectly Benefit from a Criminal Act


A recent decision of Master Sanderson of the Supreme Court of Western Australia has confirmed that a criminal wrongdoer cannot benefit indirectly as a result of the crime they committed.

In Public Trustee (WA) v Mack [2017] WASC 325 the Master had two actions before him where each plaintiff, as estate administrators, sought directions under s 45 of the Administration Act 1903 (WA) and Order 58 of the Rules of the Supreme Court 1971 (WA).

In November 2012 the Supreme Court convicted Brent Mack (Brent) of his mother’s (Ms Mack) murder.

In July 2014 Adrian Mack (Adrian), Ms Mack’s only other child passed away without a will.  In April 2016 a grant of letters of administration of Ms Mack’s estate was made to the Public Trustee and in October 2016 a grant of letters of administration of Adrian’s estate was granted to the Public Trustee.

Adrian’s estate was partly made up of Ms Mack’s estate. Under the rules of intestacy the persons entitled to the benefit of Adrian’s estate were Brent and Gary Mack, Adrian’s half-brother but not a child of Ms Mack.

The question before the Master was whether Brent forfeited any right to Ms Mack’s estate, even to the extent that it can be identified as part of Adrian’s estate.

In considering the question the Master identified the starting point as the rule of forfeiture which is consistently applied in Australia. That rule disqualifies a criminal wrongdoer from obtaining an advantage brought about by their wrongdoing.

Importantly in this situation, Brent’s entitlement to part of Adrian’s estate did not arise from any wrongdoing on his part, but had Brent not murdered Ms Mack, Adrian would not have inherited all of Ms Mack’s estate.

Interestingly, there was no Australian authority directly on point, however the parties located three American decisions from 1994, 1999 and 2012 which supported the proposition that a person should not benefit indirectly as a consequence of their crime.

With those cases in mind, the Master being satisfied that Ms Mack’s estate was discrete upon her death, and there being no evidence as to any significant modification, the Master ordered that on the final distribution of Adrian’s estate no payment should be made to Brent of any part of Adrian’s estate which derived from the estate of Ms Mack.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.