Indirect Inheritance

In a recent decision of the Public Trustee WA v Mack, Master Sanderson of the Supreme Court of Western Australia considered the unusual question of whether an individual (“A”) is entitled to inherit from the estate of another person (“B”) where B received an inheritance from the death of a third person whose death was the result of a criminal act by A.

In this case, the circumstances were as follows:

  1. The Respondent, Brent Mack was accused of and convicted of the murder of his mother which occurred in 2008.
  2. His mother died without a will and in circumstances where the Administration Act (WA) 1903 would apply to divide her estate between her two sons.
  3. The Respondent was convicted of his mother’s murder and therefore was not entitled to inherit from her estate, this is a well-established principle. As a result, his brother inherited the entirety of their mother’s estate.
  4. In 2014 the Respondent’s brother (who had inherited the whole of their mother’s estate) died without a will and in circumstances where the Administration Act (WA) 1903 would apply to divide his estate between his two brothers (the Respondent and also a half-brother on his father’s side).

This is not a situation that appears to have arisen before the Courts of Australia previously as there were no previous cases in Australia that Master Sanderson considered in his decision but rather he had to refer to three cases from America.

The Court was asked to consider whether the Respondent was entitled to inherit from his brother’s estate, where part of that estate was inherited by his brother as a result of the Respondent’s wrongdoing.  On 30 October 2017 Master Sanderson delivered his decision which was that a wrongdoer cannot benefit indirectly as a result of a crime. Therefore, Brent Mack who was convicted of his mother’s murder was not allowed to inherit from his brother’s estate.

Whilst this is an unusual situation and involved criminal and unfortunate events, it does highlight how important having a valid and up to date will is.  The end result in this scenario is that a person who was not related to Ms Mack who died in 2008, inherited her estate (being her son’s half brother).  By having a will which reflects your current wishes and testamentary intentions you have taken steps to ensure that your estate benefits those who you want to inherit from your estate.

Additionally, it highlights how the Administration Act applies to divide an estate through your lineage, which may not be your preferred beneficiaries.  If you have a desire to gift to any charities or through to friends or persons who have assisted you through your life, these wishes are not taken into consideration if you were to die without a will and the Administration Act was to apply.

This article has been co-authored by Alyce Martin and Steven Brown at Lynn & Brown Lawyers. Alyce is an experienced Perth lawyer and an associate and practices in the areas of commercial law and probate & wills. Steven is a Perth lawyer and director and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.

If you would like legal advice from Steven Brown or Alyce Martin, you can choose a Quick Match or browse Our Lawyers.

This article is written by Alyce Martin and Steven Brown and was first published on Lynn & Brown.

This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practising lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.

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