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Can a criminal record affect your ability to inherit from a will?
Here, a legal counsel unpacks whether a criminal record can impact an individual’s eligibility to inherit under a will.
Grace Robbie
Nick McColl, legal counsel at Equity Trustees, affirmed that certain criminal acts could significantly impact the execution of a will, as well as the eligibility of individuals to serve as executors, trustees, or testamentary guardians under a will.
He explained that “while a criminal record doesn’t automatically prevent a person from benefiting under a will” or serving in these roles, it is “most certainly a factor that would be taken into account when advising a client who to appoint as executor, trustee or testamentary guardian”.
To clarify the impact of having a criminal history on the inheritance process from a will, McColl elaborated on the specific types of crimes that have a bearing on the execution of the will.
Murdering or injuring will-maker
McColl expressed that a fundamental legal principle impacting the administration of wills is the “forfeiture rule”, which prevents any beneficiary who has inflicted harm upon the testator – whether through acts of violence or injury – from receiving any portion of the estate.
This principle is based on the notion that “no one should profit from their wrongdoing”, particularly in cases where the offence involves harm or fatality to the testator.
In situations where a beneficiary has been found guilty of “intentionally causing the death or serious injury of the tester”, McColl indicated that such individuals are “legally barred” from receiving any inheritance stipulated in the testator’s will.
“A person who has unlawfully killed another is also unable to obtain a grant of probate or letters of administration and, if a grant has already been made, then it will be revoked,” he said.
McColl revealed that this rule was notably applied in Re Edwards [2014] VSC 392. In this case, despite the will-maker’s death being the result of an act of “self-defence” and the presence of a documented history of domestic violence, the court upheld the forfeiture rule. The court concluded that “the rule applies to all cases of murder and manslaughter without exception”.
Fraud
Another scenario in which a criminal act may significantly influence a will pertains to instances of fraud.
McColl outlined that fraud is “generally the only crime that would affect the validity of the whole or part of a will”.
To establish that a will is fraudulent, McColl asserted that it “must be shown that another person deceived or misled the testator in such a way as to materially impact the making of the whole or part of a will in a certain way”.
“This includes wilfully false statements or the suppression of key facts by another person, intended either to gain benefits under a will for themselves or to prevent benefits being received by a person who would ordinarily expect to benefit under a will,” he said.
Convicted criminals
McColl revealed that if a crime committed by a beneficiary is “not directly related” to the testator’s death, that beneficiary remains entitled to receive their inheritance as outlined in the will.
Nevertheless, he indicated that an individual’s criminal history may influence the “way in which they should benefit under a will”. He emphasised that testators can impose specific conditions on such inheritance, particularly if they have concerns that the beneficiary may “misuse the money left to them”.
McColl gave the example of a client who left their entire estate to their only son, who was a convicted drug dealer. While the son was legally entitled to inherit, the client was concerned about how the funds would be used.
To prevent the potential misuse of the inheritance, the will included a “protective trust”, which is managed by a professional trustee. This arrangement ensures that the son’s financial needs are adequately met while protecting the inheritance from possible misappropriation.
Regarding appointments, McColl indicated that a criminal record does not inherently disqualify an individual from serving as an executor or trustee of a will. However, McColl emphasised that if the conviction pertains to an offence involving “dishonesty”, this may serve as valid “grounds for the passing over as executor or removal as trustee by the court”.
He also added: “If a person who has committed a crime is appointed as testamentary guardian, which is someone who assumes parental responsibility in the event that both parents have died, the Federal Circuit and Family Court of Australia may intervene and appoint another person as guardian or even put the child into foster care.”
