Will disputes: the rule of forfeiture and revocation of a grant of probate

Following recent blogs on areas where Will disputes can arise, in this blog we consider two more areas that have the potential for disputes over Wills and estates the reasons for which may not be immediately obvious: these are the forfeiture rule and revocation of a grant of Probate.

1) The Rule of Forfeiture

If someone unlawfully kills another person, the rule of forfeiture can prevent the offender from directly or indirectly inheriting from the victim. The rule is consistent with the legal maxim that a person should not derive an advantage from their own criminal wrongdoing. This principle was first enunciated in an 1891 case in the English Court of Appeal where a woman, who had murdered her husband, was prevented from claiming the proceeds of the husband’s insurance policy.

The potential for dispute arises because in some jurisdictions the law allows the Court, if persuaded, to apply discretion. There may, for example, be evidence of elements of mental illness in the killer, or the crime was in response to serious domestic violence, which could affect a decision about how the rule is applied.

In NSW, the Forfeiture Act 1995 allows for applications to Court to vary the rule. Matters for consideration include the conduct of the offender and the deceased, along with the effect the application of the rule would have on the offender and any other affected persons.

Illustrations of modifications to the rule of forfeiture

(i) The recent NSW Supreme Court case of Wang v Estate of Wang; Lu by his tutor Fang v Lu (2021) involved a husband who had been convicted of the wrongful death of his wife by his dangerous driving. The husband was due to inherit the whole of his wife’s estate but their minor son’s guardian argued that the rule of forfeiture should apply.

The Court reflected on the conduct of the husband and while he had caused his wife’s death it was accidental. The estate was modest and the husband had contributed financially. The Court allowed a modification of the rule of forfeiture so that he could inherit the full estate allowing him to make a negotiated settlement with the guardian.

(ii) In a very recent English case, a former businessman (aged 70) who bludgeoned his wife of 40 years to death, successfully claimed that he should receive a share of her estate estimated to be worth £2.5m ($4.75m approx).

The Court heard that the couple’s relationship had deteriorated in late 2019 after Mrs Winnister had sent a text to her husband that was meant for a handyman who worked at their house on occasion. She had signed off with a kiss. Mr Winnister became increasingly convinced that they were having an affair and his suspicions grew during a Covid-19 lockdown period accusing his wife of trying to poison him.

At the trial, evidence was presented of his ‘acute mental disorder’ involving severe depression with psychosis. The trial judge accepted ‘his offending was wholly or almost wholly attributable to his mental disorder.’

Mr Winnister’s representative argued that his client was a wealthy man in his own right and that he was only looking for a relatively small portion of his late wife’s estate which would otherwise be split among her mother and other relatives.

The trial judge ruled that Mr Winnister, by reason of his mental state, could inherit a proportion of the estate anticipated at close to 10% of the estate’s value.

2) Revocation of a grant of probate

A grant of Probate provides the authority to the Executors, named in a deceased person’s Will, to deal with the assets in the estate as directed by the instructions in the Will. A grant will only be revoked in special circumstances such as if the grant was made in error or improperly obtained. This might be because of a later Will having been discovered or where all parties agree to settle a probate or administrative issue and sufficient grounds can be established for a revocation. The Court has the power to revoke the grant of Probate but the applicant will have to show good cause for a grant to be revoked. The Court will give recognition to a Will-maker’s choice of Executor and will need good reason to change this and not, for example, simply because someone else wishes to take over the role.

Disputes can occur if there is gross misconduct by the Executor including suspected fraud or a conflict of interest (as in the illustrated case below), significant delays, or ineffective cooperation among joint Executors.

Where a dispute is based on a belief that false statements were made, success of the application will depend on whether it can be proven that enough of the information provided to the Court at the time the grant was made was incorrect and on an assessment as to whether the Court would not have made the decision it did had it been aware of the correct facts: for example, if  the Will-maker was not of sound mind at the relevant time

Only certain persons are entitled to seek revocation. This includes beneficiaries of the Will admitted to Probate or named in a previous Will, a person who would be entitled on intestacy and the Executor named in the Will.

Illustration of a revocation of a grant of probate

A breach of trust or conflict of interest can lead to a dispute between interested parties. Recently the NSW Supreme Court ordered an Executor to be removed because of a conflict of interest. The Executor had tried to transfer shares owned by the deceased to himself rather than the beneficiaries named in the Will. He knowingly failed to record the shares in the record of the estate’s assets. The beneficiaries successfully took the matter to Court to have the Executor removed from office.

Contact our Will Dispute Lawyers based in Sydney, NSW

If you need any advice on any matters relating to inheritances please contact the specialist team at Szabo & Associates Solicitors on 02 9281 5088 or complete the online contact form.