In Re Kumar  VSC 81 a tragic tale of domestic violence in which an abused wife murdered her husband and then took her own life, required the Court to determine which of them died first and whether the forfeiture rule prevented the wife from inheriting the husband's estate.
The proceeding was brought by the parents of the deceased husband who sought a grant of letters of administration of his estate. In order to determine whether a grant should be made the Court was required to determine whether the wife's estate had any interest in the deceased husband's estate. This required determination of 2 key issues:
- Which of the husband or wife died first?
- If the wife survived the husband, did the forfeiture rule prevent her estate from taking an interest in his estate?
The Court found on the evidence that it was likely that the wife inflicted the fatal injuries on the husband and that the extent of the injuries made it likely that he had died in the short time prior to her taking her own life.
On this basis, absent the operation of the forfeiture rule, the wife would take an interest in the husband's estate.
The forfeiture rule prevents any person from obtaining or enforcing any benefits resulting from their own crime. Its operation applies to wills and intestacies in the context of murder, however its operation in relation to other unlawful killings is less clear. Courts have diverged in its application to cases of manslaughter, diminished responsibility, assisted suicide and family violence.
The Court identified the principle to be applied to cases of unlawful killing other than murder as that laid down in Edwards v State Trustees Ltd  VSCA 28. Consideration of the principle is required on a case-by-case basis. The issue is: does the criminal culpability of the offender require that he or she should not be entitled to take a benefit arising from the death?
The Court then determined that the circumstances of family violence in this case were such that, had the wife come to trial for murder or manslaughter it would have been open to her to take the defences of self-defence and defensive homicide and to avail herself of the family violence provisions of s 9AH of the Crimes Act 1958 (Vic). Those provisions (as then in force) provide that a reasonable belief that death or really serious injury is imminent for the purposes of self-defence and defensive homicide can be formed in circumstances of persistent and ongoing family violence.
The Court said this:
"97 ... s 9AH affords greater flexibility regarding the imminence of a threat or issues of proportionality in the context of family violence. In this case, the physical and psychological abuse that Ms Parashar suffered, combined with the presence of triggers in the weeks leading up to 10 June 2012 and her emotional state that evening, allow the inference to be drawn that she genuinely believed that she had to attack the deceased violently in order to defend herself from death or really serious injury. Accordingly, I am satisfied that her conduct did not amount to murder."
Her Honour concluded that, having regard to the history of violence perpetrated upon her, the acts of the wife in killing her husband constituted defensive homicide.
Her Honour then considered whether the wife's culpability was such that she should be precluded from taking an interest in his estate. After reviewing the cases she concluded:
"107 Such cases reflect a relatively high threshold for preclusion of the forfeiture rule in the context of family violence. Certainly, the criminal conduct appears to be nearing that of self-defence."
The Court considered the history of violence throughout the marriage and particularly in the last few years leading up to the deaths. The Court's ultimate conclusion was as follows:
"118 The issue is finely balanced. Although I have inferred in all of the circumstances that Ms Parashar held the belief that her actions were necessary in order to protect herself from death or really serious injury, with some difficulty, I find that her criminal culpability is not so low as to preclude application of the forfeiture rule. On the evidence, the degree of family violence, particularly in the period immediately leading up to Ms Parashar’s criminal conduct, does not reduce her blame for the deceased’s death to the requisite level. However, I note that were Ms Parashar alive today to give evidence, the outcome of this application may have been different."
Under those circumstances the forfeiture rule prevented the wife's estate from taking an interest in the husband's estate.