Forfeiture Act 2024

The Act’s operation turns on a small set of defined concepts and legal constructs that determine who may be affected, what property can be targeted, and which processes the Court may use.

• Forfeiture rule. The Act adopts the common law forfeiture rule as its substantive base: the rule that in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing (s 3). The Act preserves the rule as the substantive principle but provides statutory processes for application, modification and enforcement (ss 5-13).
• Benefit and property. “Benefit” is defined broadly to include any property, interest or entitlement under the estate of a deceased person (s 3). “Property” is defined to include real or personal property, tangible or intangible, and choses in action (s 3). The forfeiture rule is declared to apply to any benefit an offender would otherwise obtain (s 5).
• Offender and unlawful killing. “Offender” means a person who has unlawfully killed another person and includes an alleged offender (s 3). “Unlawful killing” is defined to align with a set of homicide-related offences in the Criminal Law Consolidation Act 1935 if committed in the State (murder, manslaughter, aiding/abetting/counselling suicide, criminal neglect causing death, causing death by driving or operating a vessel culpably negligent/reckless/dangerous, and aiding/abetting other such offences), and to include any homicide in another jurisdiction that would be such an offence if committed in this State (s 3). The Act expressly excludes deaths by voluntary assisted dying from the definition of suicide for the relevant subparagraph (s 3(2)).
• Interested person. The Act provides a generous standing definition of “interested person” for applications: it includes the offender, the executor or administrator, beneficiaries (under a will or on intestacy), persons claiming through an offender, and any other person with a special interest (s 3).
• Mental incompetence and unfitness. The Act distinguishes two mental-status findings under Part 8A of the Criminal Law Consolidation Act 1935 (or corresponding laws elsewhere): (1) mental incompetence to commit the offence,if so found, the forfeiture rule does not apply to the person (s 7(1)); and (2) mental unfitness to stand trial,if so found, the rule does not apply subject to an order under s 8 (s 7(2)). Section 8 provides the route by which any interested person can seek a forfeiture application order allowing the Court to apply the forfeiture rule as if the alleged offender had been found guilty, subject to specified thresholds.
• Court-centric remedies and standards. The Supreme Court is the forum for all applications under the Act (s 3). The Act sets evidentiary and decision-making standards: for a forfeiture application order under s 8(3) the Court must be satisfied that objective elements of the offence have been established (either beyond reasonable doubt or on the balance of probabilities) and that it is in the interests of justice to apply the rule; for modification orders under s 9(4) the Court must be satisfied that exceptional circumstances exist such that it is in the interests of justice to modify the effect of the rule.
• Interim, preservation and ancillary orders. The Court may make interim preservation orders where there are reasonable grounds to suspect an unlawful killing, and it may make a range of orders to prevent an offender obtaining property or interests that are not benefits subject to the forfeiture rule (ss 10-11). The Court’s power includes converting holdings from joint tenancy to tenancy in common, preventing trustees from distributing to the offender, and conferring property on persons who would have inherited if the offender had predeceased the deceased (s 11).
• Enforcement and return. The Act provides civil enforcement mechanisms to require delivery-up of benefits or monetary equivalents (s 12) and contemplates return orders where convictions are quashed or not-guilty findings emerge (s 13), subject to finalisation of proceedings and the interests of justice.
• Civil character and evidentiary conclusive certificates. Proceedings are civil (s 14). A certificate under s 42 of the Evidence Act 1929 in relation to an offence that constitutes an unlawful killing is conclusive proof that the person named in the certificate committed that unlawful killing (s 17(a)). Certificates from court registrars certifying mental-status findings or that objective elements of an offence were established beyond reasonable doubt are similarly conclusive (s 17(b)).

These concepts together create a framework where the Supreme Court is the hub for declaratory, preservation, modification and enforcement relief tied to the forfeiture rule, with specified statutory thresholds and civil evidentiary presumptions intended to streamline proof in proceedings under the Act.

The Act affects a defined set of actors connected to a deceased estate and to unlawful killing. For each actor, the Act changes or clarifies decision-making duties, procedural rights and exposure to civil remedies.

• Executors and administrators. These are the primary operational actors managing distribution of estates. If an executor or administrator knows, or ought reasonably to know, the forfeiture rule applies to an estate, they must distribute the estate according to the rule and any private agreement to the contrary is of no effect unless made under a forfeiture modification order (s 6(1)). Executors/administrators may apply to the Court for directions (s 6(2)(a)) or may apply the rule without a Court order where the offender has been convicted in criminal proceedings or where a court has found in civil proceedings that the offender committed the unlawful killing (s 6(2)(b)). The Act expressly removes civil and criminal liability for executors/administrators who distribute an estate in accordance with s 6 (s 6(3)).
• Beneficiaries (will or intestacy). Persons who would receive benefits from the deceased estate are “interested persons” and may bring applications under the Act (s 3). Beneficiaries can apply for interim preservation orders (s 10), orders preventing an offender from obtaining property or interests unrelated to the forfeiture rule (s 11), enforcement orders to recover benefits distributed improperly (s 12), and orders for return of benefits if convictions are quashed (s 13). They may also oppose modification applications under s 9.
• Offenders and alleged offenders. A person who unlawfully killed another (or is alleged to have done so) is an “offender” and is directly affected. The rule is designed to preclude such persons from taking benefits (s 5). The Act creates procedural protections and routes: if a person is found mentally incompetent to commit the offence, the rule does not apply (s 7(1)); if found mentally unfit to stand trial the rule does not apply except by Court order under s 8 (s 7(2) and s 8). An offender may apply for a modification order after criminal proceedings are finalised (s 9). However, an alleged offender who is the subject of a forfeiture application order under s 8 will, if the order is made, be treated for all purposes as if found guilty, and may be precluded from seeking modification thereafter (s 8(5)(a)-(b)).
• Executors or probate applicants subject to suspicion. The Schedule would have permitted the Court to refuse probate or administration to a person otherwise entitled if there were reasonable grounds to believe they committed an offence relating to the deceased’s death and to grant probate to another (Schedule 1 Part 1, inserted s 36A). The Schedule also included a provision treating persons disqualified from taking an estate as having predeceased (Schedule 1 Part 1, inserted s 118). The Schedule contains an editorial note that Part 1 will not be brought into operation because the Administration and Probate Act 1919 was repealed by the Succession Act 2023; the Schedule therefore needs to be read in light of that note.
• Trustees and other property holders. The Court may make orders preventing offenders from acting as trustees or preventing trustees from distributing trust property to the offender (s 11(1)(c)-(d)). The Court may also alter joint tenancies to tenants in common to prevent survivorship vesting (s 11(1)(b)).
• Judicial and registry officers. The Supreme Court is the forum for all applications (s 3). Certificates from the Registrar of the Supreme Court or other court officers are given conclusive effect on specified matters under s 17(b), creating a procedural reliance point for parties.
• Government enforcement bodies and the Criminal Assets Confiscation regime. The Act amends the definition of “proceeds” in the Criminal Assets Confiscation Act 2005 (Schedule 1 Part 2) so that property vesting in a person by distribution under the forfeiture rule or a forfeiture modification order is treated as proceeds/instrument of an offence, drawing such property into the confiscation regime.
• Persons claiming through an offender and other persons with special interest. The standing definition of interested person explicitly covers persons claiming through an offender and any person with a special interest in the outcome (s 3), which captures a wide range of private and potentially commercial claimants (creditors, beneficiaries by substitution, claimants under agreements with a would-be beneficiary).

Geographic reach: the Act applies to property both within and outside the State and to unlawful killings inside or outside the State (s 4), subject to the transitional rule that the Act applies only to unlawful killings occurring after commencement (Schedule 1 Part 3).

Timing and procedural effects alter behaviour across these groups. Executors must make inquiry where they know or ought to know the rule may apply; beneficiaries may be required to return benefits if distributed contrary to the rule; offenders face civil loss of estate entitlements regardless of criminal conviction in some circumstances (for example, if a forfeiture application order is made under s 8); and trustees and joint holders face Court-driven alterations to normal property incidents to prevent vesting in offenders (s 11).

The Act creates explicit statutory duties, procedural rights and time-limited claims. Below are the principal obligations and entitlements from the Act text.

Duties

• Executor/administrator duties to apply the rule. If an executor or administrator knows or ought reasonably to know that the forfeiture rule applies, the estate must be distributed in accordance with the rule (s 6(1)). Private agreements to disapply or modify the rule are ineffective unless made pursuant to a forfeiture modification order under Part 3 (s 6(1)). The combination of a positive duty to distribute according to the rule and the invalidation of private agreements channels estate decision-making into the statutory process.
• Preservation duty when interim orders issued. If the Court makes interim orders under s 10, parties subject to the orders are required to comply; the Court may make further orders to preserve property or the value of any benefit to which the forfeiture rule might apply (s 10(1)).
• Trustee and joint-tenancy constraints. If the Court exercises powers under s 11 it may, for example, require trustees not to distribute to the offender or alter the nature of tenancy,holders of those interests must comply with Court orders.

Rights

• Right to apply for court guidance. Executors and administrators may apply to the Court for an order specifying whether, or how, the forfeiture rule applies to the distribution of the estate (s 6(2)(a)). This is an affirmative right that gives the fiduciary a protective way to resolve uncertainty.
• Right of executors to act without order under prescribed conditions. An executor or administrator may apply the rule when distributing the estate without obtaining any Court order if an offender has been found guilty in criminal proceedings or a civil court has found that the offender committed the unlawful killing (s 6(2)(b)). This provides a non-judicial pathway for distribution where a prior decision is already in hand.
• Interested persons’ standing to seek orders. Any interested person may apply to the Court for interim orders (s 10), orders related to other property and interests (s 11), applications to require delivery up or equivalent payment of benefits (s 12), and, where applicable, for return of benefits where convictions are quashed or a not-guilty finding is entered (s 13). The Act’s standing definition is broad (s 3).
• Forfeiture application order (mental unfitness cases). If a person is found mentally unfit to stand trial, an interested person may apply under s 8 for a forfeiture application order to make the forfeiture rule apply as if the alleged offender had been found guilty. The Court may grant that order only if satisfied that the objective elements of the offence have been established (either beyond reasonable doubt or on the balance of probabilities) and that it is in the interests of justice (s 8(3)-(4)).
• Forfeiture modification order (exceptional circumstances). An offender or any other interested person may apply for an order modifying the effect of the rule after the offender has unlawfully killed another person and is thus precluded from obtaining a benefit (s 9(1)). The Act bars such applications while criminal proceedings are pending (s 9(2)). The Court may modify or disapply the rule where satisfied that exceptional circumstances exist such that it is in the interests of justice to do so (s 9(4)-(5)).
• Right to enforcement and recovery. An interested person may apply for an order requiring delivery up of a benefit or payment of an equivalent amount if a person has received a benefit as a result of an unlawful killing (otherwise than pursuant to a forfeiture modification order) (s 12(1)). Where an offender’s conviction is quashed or the offender is found not guilty, an interested person may apply for return of benefits subject to the Court being satisfied civil and criminal proceedings are finalised and that it is in the interests of justice (s 13(1)-(2)).

Procedural and evidentiary features shaping duties and rights

• Civil character of proceedings. Applications under the Act are civil proceedings, and civil rules of evidence apply; criminal-law construction rules do not apply (s 14). This affects the standards and procedures used by parties.
• Conclusive certificates. A certificate under s 42 of the Evidence Act 1929 certifying an offence that constitutes an unlawful killing is conclusive proof that the named person committed the unlawful killing (s 17(a)). Similarly, registrar certificates certifying findings of mental incompetence, mental unfitness, or that the objective elements of an offence were established beyond reasonable doubt are conclusive under s 17(b)(i)-(iii). These statutory conclusive proofs shape parties’ ability to relitigate such matters in the Supreme Court.
• Time limits. Applications must generally be brought within fixed periods: within six months after the date of death, or six months after finalisation of criminal proceedings, or three months after the Court has made an order specifying how the forfeiture rule applies; the Court may extend time with permission (s 16). These time limits create a duty on interested persons to act promptly, subject to Court discretion.
• Protection for executors. Section 6(3) expressly provides that an executor or administrator does not incur civil or criminal liability for distributing an estate in accordance with s 6, producing a statutory safe harbour where the fiduciary follows the statutory rule.

Limits and bars

• No modification application while criminal proceedings pending. An application for modification under s 9 cannot be made until criminal proceedings have been finalised (s 9(2)), reflecting the Act’s design to avoid conflicting adjudications while criminal process remains live.
• Irrevocability after certain orders. If a forfeiture application order is made in relation to an alleged offender, the forfeiture rule applies for all purposes including pre-order acts, and no application may thereafter be made under Part 3 for modification of the effect of the rule (s 8(5)(a)-(b)). This gives such orders finality with respect to modification.

Taken together, duties fall on executors/administrators to apply the rule where they know or ought to know it applies, duties to comply with Court orders affecting trust and property incidents, and duties on recipients to surrender benefits where ordered. Rights include broad standing to apply, both to enforce and to seek modification, civil remedies for recovery, and evidentiary shortcuts through conclusive certificates.

The Forfeiture Act 2024 frames enforcement in civil terms; it does not create criminal penalties for failure to distribute in accordance with the forfeiture rule. Enforcement measures and practical consequences are statutory civil mechanisms available through the Supreme Court.

Civil enforcement mechanisms

• Delivery up or payment equivalent. If a person has received a benefit as a result of an unlawful killing otherwise than pursuant to a forfeiture modification order, an interested person may apply to the Court for an order requiring the person to deliver up the benefit or to pay an amount determined by the Court equivalent to the benefit’s value (s 12(1)). The Act defines “benefit” in that section as including any property or interest, which gives the Court broad remedial scope in specifying equivalents for non-monetary property (s 12(2) definition).
• Return of benefits post-acquittal or quashed conviction. Where an offender has been prevented from receiving a benefit due to the forfeiture rule or an order under the Act, and the offender is later found not guilty or has a conviction quashed, an interested person may apply for a return order requiring delivery up or payment of an equivalent amount, provided (i) all civil and criminal proceedings are finalised and no new trial or appeal is likely, and (ii) the Court is satisfied it is in the interests of justice (s 13(1)-(2)). This provision protects the possibility of restitution where criminal process ultimately absolves the offender.
• Interim preservation orders. Where the Court is satisfied there are reasonable grounds to suspect an unlawful killing, it may make interim orders to preserve property or the value of any benefit that might be subject to the forfeiture rule, or to protect interests of any interested person (s 10(1)). Interim orders may be varied or revoked on subsequent application (s 10(2)).
• Orders affecting property structures and trustee powers. The Court may make orders preventing offenders from obtaining property or interests that are not themselves benefits subject to the forfeiture rule (s 11). Examples include conferring property on other persons, treating joint tenancy as tenancy in common, preventing offenders holding property as trustees, or preventing trustees from distributing trust property to the offender (s 11(1)(a)-(d)). The Court may vary or revoke such orders on further application (s 11(2)).
• Broad order-making power. Orders may be in such terms and subject to such conditions as the Court thinks fit (s 15). This gives the Court a flexible remedial toolkit to tailor enforcement and restitution orders to the circumstances of particular estates and property types.

Absence of criminal sanctions and protective provision for executors

• Civil character. Proceedings under the Act are expressly civil (s 14(1)), and criminal-law construction rules do not apply (s 14(2)(a)). The enforcement regime is therefore civil coercion,delivery up, monetary equivalents, and property-structuring orders,rather than criminal punishment.
• Protection for executors acting under s 6. Importantly, an executor or administrator does not incur civil or criminal liability for distributing an estate in accordance with s 6 (s 6(3)). This is a statutory safe harbour should the fiduciary act in accordance with the rule or rely on a conviction/civil finding where applicable.

Evidential enforcement advantages

• Conclusive certificates. The Act gives conclusive status to certain certificates: a certificate under s 42 of the Evidence Act 1929 issued in relation to an offence that constitutes an unlawful killing is conclusive proof that the person named committed that unlawful killing (s 17(a)). A registrar’s certificate that a person was found mentally incompetent, mentally unfit to stand trial, or that the objective elements of an offence were established beyond reasonable doubt is conclusive proof of those facts (s 17(b)(i)-(iii)). These conclusive evidentiary devices streamline enforcement proceedings and limit re-litigation of determinations made in related criminal or civil proceedings.
• Dual standard for objective elements in s 8 applications. For alleged offenders found mentally unfit, the Court may apply the forfeiture rule as if guilty if it is satisfied that the objective elements of the offence have been established either beyond reasonable doubt or on the balance of probabilities (s 8(3)). That dual standard creates an evidentiary mechanism to support civil application of the rule in the absence of a criminal conviction.

Interaction with confiscation regime

• Criminal Assets Confiscation Act linkage. Schedule 1 Part 2 amends the Criminal Assets Confiscation Act 2005 so that property vesting by distribution under the forfeiture rule or a forfeiture modification order is treated as proceeds or an instrument of an offence for confiscation purposes (Schedule 1 Part 2, amending s 7(2) of the Criminal Assets Confiscation Act). That statutory cross-linking means property dealt with under the Forfeiture Act can be captured by criminal-asset confiscation processes.

Limits, finality and reversibility

• Finality following certain orders. A forfeiture application order made under s 8 binds the alleged offender for all purposes as if found guilty and precludes subsequent applications for modification of the rule under Part 3 (s 8(5)(a)-(b)). That creates finality for purposes of distribution but also forecloses the usual route for post-order modification.
• Reversibility where criminal outcomes change. The Act allows for return orders where convictions are quashed or a not-guilty finding is reached, but only when civil and criminal proceedings are finalised and the Court considers it in the interests of justice (s 13). Thus, remedies are reversible but subject to judicial discretion and procedural finality.

Practical enforcement exposure

• Recipients of distributions made outside the statutory process can be subjected to civil recovery orders (s 12).
• Trustees, joint holders and others whose property incidents facilitate vesting in offenders may be subject to orders changing legal incidents of property to prevent or reverse vesting (s 11).
• The Court’s flexibility under s 15 permits tailored remedies, but enforcement is principally civil and executed through Court orders rather than statutory criminal punishments.

In sum, the Act establishes civil remedies and enforcement processes to prevent offenders benefiting from unlawful killing, to recover improperly distributed benefits, and to provide pathways for equitable adjustment, subject to judicial discretion and procedural protections such as finalisation and interests-of-justice tests.

The Act expressly references, relies upon and modifies related statutory regimes. The interaction is both definitional (importing concepts from criminal statute and evidence law) and structural (amending confiscation law and engaging probate-related statutory provisions). The principal interactions in the Act are as follows.

Criminal Law Consolidation Act 1935

• Definition of unlawful killing. The Act defines “unlawful killing” in terms of specified offences under the Criminal Law Consolidation Act 1935 when committed in the State: murder; all forms of manslaughter; aiding/abetting/counselling suicide (and attempts); criminal neglect causing death; causing death by driving/operating a vessel culpably negligent/reckless/dangerous; and aiding/abetting/counselling/procuring such offences (s 3). The Act also imports corresponding foreign-jurisdiction homicides that would equate to those offences if committed in the State (s 3).
• Mental-status findings. Sections 7 and 8 specifically refer to Part 8A Divisions 2 and 3 of the Criminal Law Consolidation Act 1935 for findings of mental incompetence to commit an offence and mental unfitness to stand trial. The Act’s application of the forfeiture rule is thus tethered to criminal-law mechanisms for determining mental capacity and fitness (s 7(1)-(2), s 8).

Evidence Act 1929

• Conclusive certificate under s 42. The Act makes a certificate referred to in section 42 of the Evidence Act 1929 conclusive proof that the person named committed the unlawful killing (s 17(a)). This cross-reference creates an evidentiary shortcut in forfeiture proceedings: a certificate relied on in civil proceedings under this Act is conclusive proof and therefore limits relitigation of the commission of the offence.
• Registrar certificates. The Act also treats registrar certificates as conclusive proof of mental-status findings or that the objective elements of an offence were established beyond reasonable doubt (s 17(b)). This aligns judicial and administrative record-keeping under the evidence rules to expedite civil forfeiture proceedings.

Criminal Assets Confiscation Act 2005

• Proceeding for confiscation. Schedule 1 Part 2 amends s 7(2) of the Criminal Assets Confiscation Act to add that property vesting in a person from the distribution of an estate in accordance with the forfeiture rule or a forfeiture modification order, or otherwise by order of the Supreme Court under the Forfeiture Act 2024, constitutes proceeds or an instrument of an offence (Schedule 1 Part 2, inserting paragraph (ba) in s 7(2)). This amendment incorporates property affected by the Forfeiture Act into the criminal-asset confiscation regime, enabling separate confiscation processes.
• Potential duplication and double-remedy risk. The cross-linkage means property distributed under the Forfeiture Act may also be treated as proceeds for confiscation; parties should be aware of potential overlapping remedies and parallel proceedings between civil forfeiture applications and criminal-asset confiscation processes. The Act does not in itself resolve duplication or priority of remedies; it creates the statutory basis for criminal-asset bodies to consider such property within their remit.

Administration, Probate and Succession statutes (Schedule 1 Part 1)

• Probate/administration discretionary grant. Schedule 1 Part 1 included provisions (inserted ss 36A and 118) that would authorise the Court to refuse a grant of probate or administration to a person where there are reasonable grounds to believe the person committed an offence relating to the deceased’s death, and to treat disqualified persons as having predeceased the testator or intestate (Schedule 1 Part 1). The Schedule contains an editorial note that Part 1 will not be brought into operation because the Administration and Probate Act 1919 was repealed by the Succession Act 2023 on 1 January 2025. Read in light of that note, the practical interface between probate practice and the Forfeiture Act will operate under the current succession/probate regime in force at the relevant time.
• Executors and probate practice. Independently of the Schedule, s 6 places duties and gives directions powers to executors and administrators under the Forfeiture Act; probate rules, uniform civil procedure and practice directions will still govern court applications for directions or grants of probate where those interact with the forfeiture rule.

Civil and criminal procedural rules

• Civil character of proceedings. The Act makes proceedings under it civil, excluding criminal construction rules and importing civil evidence rules (s 14). This affects whether standards such as double jeopardy, reasonable doubt, and statutory criminal protections apply in the same way in forfeiture proceedings, and it signals that forfeiture remedies are pursued as civil rights and remedies rather than criminal sanctions.
• Relationship to criminal proceedings. The Act contains timing bars to prevent interference with live criminal proceedings: no application for modification under s 9 can be made while criminal proceedings are pending (s 9(2)). Where an alleged offender is found mentally unfit and the trial adjourned, the Court may adjourn a forfeiture application and make such orders as it thinks fit (s 8(2)). The Act also contemplates that findings and convictions in criminal proceedings and civil findings can be relied on by executors under s 6(2)(b).

Foreign law and extra-territoriality

• Extra-territorial application. The Act applies to unlawful killings committed outside the State insofar as the homicide would be an offence in the State and applies to property inside or outside the State (s 4). The Act therefore contemplates extra-territorial events and assets, but it does not by its text create enforcement mechanisms in foreign jurisdictions; enforcement outside the State would require local legal mechanisms or cooperation.

Regulations and fees

• Rule-making and fee notices. The Governor may make regulations for the Act’s purposes (s 18(1)). Regulations may delegate matters to Ministerial discretion (s 18(2)(d)). The Minister may prescribe fees by fee notice under the Legislation (Fees) Act 2019 (s 18(3)-(4)). This allows subordinate instruments to set procedural detail and fees.

Transitional scope

• Temporal limitation. Schedule 1 Part 3 provides that the Act applies only to unlawful killings occurring after commencement. This transitional provision limits retroactivity and interacts with the commencement schedule provided in the legislative history.

In short, the Act imports criminal-law findings and evidence certificates, aligns with the evidence regime, and routes estate-related property and proceeds into the confiscation regime. It also sits alongside probate and succession rules (subject to the editorial note regarding Schedule 1 Part 1), and it is designed to operate in parallel with criminal proceedings while preserving the Court’s power to adjust property incidents and provide civil remedies.

The Act’s legislative record is short and is contained in the instrument’s own legislative history and Schedule. The key items are as follows, as recorded in the Act text.

• Enactment and assent. The Forfeiture Act 2024 received assent on 19 September 2024 (Legislative history).
• Commencement. The Act comes into operation on a day to be fixed by proclamation (s 2(1)). The legislative history records a commencement effective date in the Gazette for most provisions: 15 January 2025 (Gazette 21.11.2024 p4214), with Schedule 1 Part 1 uncommenced (Legislative history). The Act therefore uses the standard proclamation mechanism for commencement, and not all schedule provisions are in force.
• Schedule 1: related amendments and transitional provisions. Schedule 1 contains three parts:
  • Part 1 proposes amendments to the Administration and Probate Act 1919, inserting new sections 36A and 118 concerning granting probate or administration to other persons where there are reasonable grounds to believe an entitled person committed an offence relating to the deceased’s death, and treating persons disqualified from taking interests as predeceased (Schedule 1 Part 1). The Act includes an editorial note: Part 1 will not be brought into operation as the Administration and Probate Act 1919 was repealed by the Succession Act 2023 on 1 January 2025. The legislative history therefore flags that Schedule 1 Part 1 is not operative.
  • Part 2 amends section 7 of the Criminal Assets Confiscation Act 2005 by inserting paragraph (ba) to treat property vesting by distribution of an estate under the forfeiture rule or a forfeiture modification order, or otherwise by order of the Supreme Court under the Forfeiture Act, as proceeds or an instrument of an offence (Schedule 1 Part 2, amending s 7(2)). This is a substantive cross-Act amendment integrating the forfeiture outcome into the confiscation regime.
  • Part 3 provides a transitional provision limiting the Act’s application to unlawful killings occurring after commencement (Schedule 1 Part 3).
• Editorial note and cross-Act repeal linkage. The editorial note in Schedule 1 Part 1 records that the Administration and Probate Act 1919 was repealed by the Succession Act 2023 on 1 January 2025, and that the scheduled insertions will not be brought into operation. This indicates the drafters expected overlap with successor probate/succession legislation and took a conservative approach to commencement.
• Regulatory and delegated powers. Section 18 provides the Governor and Minister with powers to make regulations and fee notices. Those subordinate instruments can affect procedure, savings and transitional arrangements, and set fees with waiver options (s 18(1)-(4)).

There are no entries in the Act text about subsequent amendments, disallowances or subordinate instruments made under the Act beyond the general delegation power. The legislative history section records the Act’s principal particulars (year, number, assent, commencement) and notes which provisions are uncommenced.

Given the Act is new, the amendment history in the source is limited to the Act’s own schedule and commencement apparatus. Practitioners should monitor subordinate legislation (regulations and fee notices) and any consequential changes under the Criminal Assets Confiscation Act administration to see how s 7(2)(ba) is implemented. The editorial material indicates further complexity in relation to legacy probate statutes, but the legislative note specifies that Schedule 1 Part 1 will not be brought into operation because the older probate statute has been repealed.

The Act text supplied contains no case law or litigation history. The instrument is a statutory framework intended to be applied in civil proceedings before the Supreme Court; any litigation history will therefore develop only after the Act’s commencement and the filing of cases under its provisions.

The Act does, however, anticipate and rely upon determinations and records from other proceedings in its evidentiary and substantive operation:

• Criminal findings and registrar certificates. Section 17 makes certain certificates conclusive proof of matters such as commission of the unlawful killing (a certificate under s 42 of the Evidence Act 1929) and registrar certificates that a person was mentally incompetent, mentally unfit to stand trial, or that the objective elements of an offence were established beyond reasonable doubt (s 17(b)). The Act thereby builds a statutory evidential pathway that will shape litigation practice under the Forfeiture Act: parties may rely on such certificates rather than re-litigate underlying facts.
• Reliance on criminal and civil findings. Section 6(2)(b) explicitly allows executors and administrators to apply the forfeiture rule without a Supreme Court order where an offender has been found guilty in criminal proceedings or where a court has found in civil proceedings that the offender committed the unlawful killing. This means existing criminal convictions or civil findings will be operational in subsequent forfeiture claims and may substantially reduce litigation in many cases.

What the Act does not provide in its text about litigation

• No reported decisions or authority. The Act contains no judicial decisions interpreting its provisions. That absence means practitioners have no appellate guidance from the Act text on:
  • How the Court will exercise its “interests of justice” discretion in s 8(3)(b) and s 9(4).
  • What circumstances will qualify as “exceptional circumstances” for modification of the rule (s 9(4)).
  • How the Court will weigh the dual standard in s 8(3) when assessing “objective elements” either beyond reasonable doubt or on the balance of probabilities.
  • The practical operation of s 6(1)’s “knows (or ought reasonably to know)” threshold for an executor’s duty.
  • How the Court will deal with multi-jurisdictional assets where the Act applies extra-territorially (s 4) but enforcement abroad requires local cooperation.

Anticipated litigation themes

• Evidentiary reliance on certificates. Given s 17 treats certain certificates as conclusive, litigants will likely test the scope and limits of those certificates, including whether the prescribed certificates cover all relevant facts or whether collateral challenges (jurisdiction, irregularities in the criminal process) can be mounted on other grounds.
• Interplay with criminal finality and modification applications. Section 9(2) bars modification applications until criminal proceedings are finalised, and s 13 conditions return orders on finalisation. Litigation may therefore arise on what constitutes finalisation and on the boundaries of “no new trial or appeal likely” in s 13(2)(a).
• Mental fitness/competence pathways. The s 7-8 route for alleged offenders found mentally unfit or incompetent is novel in statutory form and will likely generate litigation on standards the Court applies when asked to treat an alleged offender as if guilty for the forfeiture rule.
• Confiscation cross-over. The amendment to the Criminal Assets Confiscation Act (Schedule 1 Part 2) will create litigation opportunities about whether property treated as proceeds under s 7(2)(ba) can be subjected to confiscation, and which remedy takes precedence.

Because the Act is new, parties and courts will build a body of case law; practitioners should expect initial years to produce reported decisions on standards of proof, interests-of-justice factors, exceptional circumstances, evidentiary weight of certificates, and inter-action with criminal-asset confiscation proceedings.

The Act contains features that can produce unintended outcomes, practitioner pitfalls and tight procedural windows. The following “gotchas” are grounded in the Act text; each is framed as the concrete mechanism by which risk or surprise can arise.

1. Executor’s “ought reasonably to know” obligation versus safe harbour

• Mechanism. Section 6(1) requires distribution in accordance with the forfeiture rule where the executor or administrator “knows (or ought reasonably to know)” the rule applies. The “ought reasonably to know” standard is objective and may compel inquiry beyond mere suspicion. At the same time, s 6(3) provides that an executor or administrator does not incur civil or criminal liability for distributing an estate in accordance with s 6.
• Practical tension. Executors who fail to make reasonable inquiries may later be criticised for not having recognised the application of the rule; yet the protection in s 6(3) applies only where distribution is made according to s 6. If an executor erroneously distributes contrary to the rule, they may face recovery actions under s 12. Executors should therefore err on the side of obtaining court directions in doubtful cases (s 6(2)(a)).

2. Agreements to modify the rule are ineffective unless court-ordered

• Mechanism. Section 6(1) states any agreement to modify or disapply the rule is of no effect unless made pursuant to a forfeiture modification order.
• Practical consequence. Parties cannot rely on private settlements or family agreements to allow an offender to take benefits; such arrangements risk being undone by later court enforcement under s 12. Where parties wish to alter the rule’s effect, they must obtain a court order under Part 3 (s 9).

3. Finality after a s 8 forfeiture application order

• Mechanism. If the Court makes a forfeiture application order under s 8 in relation to an alleged offender, the rule applies for all purposes including retrospective effects, and no application may be made under Part 3 to modify the effect of the rule (s 8(5)(a)-(b)).
• Practical consequence. An alleged offender who is the subject of such an order loses the separate statutory route to seek a modification under s 9. A s 8 order thus can be final and preclusive; parties should be cautious about applying for a s 8 order without considering its long-term irrevocability for modifications.

4. Dual evidentiary standard in s 8

• Mechanism. The Court may make a s 8 order only if satisfied the objective elements of the offence have been established, either beyond reasonable doubt or on the balance of probabilities (s 8(3)(a)).
• Practical consequence. This creates an unusual hybrid: a civil proceeding may accept criminal-standard proof (beyond reasonable doubt) or civil-standard proof (balance of probabilities) for the objective elements. Parties should be aware that a civil finding based on a balance-of-probabilities standard can have the same dispossession consequence as a criminal conviction under this Act, particularly in mental-unfitness contexts.

5. Bar on modification applications while criminal proceedings pending

• Mechanism. Section 9(2) prevents an application for a forfeiture modification order while criminal proceedings against the offender are pending.
• Practical consequence. Where criminal proceedings are live, interested persons cannot seek a modification; they must either wait for criminal finalisation (creating potentially long delays) or seek interim preservation orders (s 10) to protect assets. This timing bar can freeze estates and create liquidity problems for beneficiaries.

6. Certificates treated as conclusive evidence

• Mechanism. Section 17 gives conclusive effect to s 42 Evidence Act certificates and registrar certificates about mental status and establishment of objective elements beyond reasonable doubt.
• Practical consequence. Parties cannot relitigate the matters covered by those certificates in Forfeiture Act proceedings. However, this may produce surprising finality where, for example, an administrative or criminal record contains a certificate and the recipient of an estate is then subject to immediate civil recovery without the chance to contest that specific certified matter in the forfeiture proceeding.

7. Risk to recipients of distributions

• Mechanism. Section 12 allows recovery orders against persons who received benefits other than under a forfeiture modification order.
• Practical consequence. Beneficiaries who accept and spend distributions may later be ordered to return those benefits or pay their value. There is no statutory limitation preventing such recovery provided an application is made within the time limits or with the Court’s permission (s 16). This is commercially significant where distributions are substantial or have been dissipated.

8. Confiscation overlap

• Mechanism. The Criminal Assets Confiscation Act amendment in Schedule 1 Part 2 (inserting s 7(2)(ba)) treats property vesting under the Forfeiture Act as proceeds or an instrument of an offence for confiscation.
• Practical consequence. Property dealt with under the Forfeiture Act may also be vulnerable to confiscation processes. Parties should expect parallel proceedings or competing claims between civil forfeiture applicants and criminal-assets authorities.

9. Extra-territorial application does not guarantee extraterritorial enforcement

• Mechanism. The Act applies to unlawful killings and property outside the State (s 4).
• Practical consequence. Although the Act reaches extra-territorial events and assets, practical enforcement outside the State will require local legal cooperation. The Act itself does not create direct foreign enforcement powers. Parties dealing with foreign assets should consider comity, recognition of orders, and local enforcement channels.

10. Transitional limitation and commencement uncertainty

• Mechanism. Schedule 1 Part 3 states the Act applies only to unlawful killings occurring after commencement. Section 2(1) provides commencement by proclamation.
• Practical consequence. Determining whether a particular unlawful killing falls within the Act depends on commencement timing. The legislative history records a Gazette commencement date for most provisions, but practitioners must check whether the specific provision they rely upon is in operation and whether Schedule 1 Part 1 provisions have been brought in (the Schedule itself contains an editorial note that Part 1 will not be brought into operation because the Administration and Probate Act 1919 was repealed).

11. Probate-related amendments uncommenced

• Mechanism. Schedule 1 Part 1 inserts provisions into the Administration and Probate Act 1919 but is editorially noted as uncommenced due to repeal by the Succession Act 2023.
• Practical consequence. Practitioners expecting the Court to exercise the particular probate-granting powers in inserted s 36A should note those provisions will not be brought into operation. Reliance on those draft amendments is therefore a potential gotcha.

12. Breadth of “interested person”

• Mechanism. “Interested person” includes any person with a special interest in the outcome (s 3).
• Practical consequence. The broad standing provision may invite third-party applications, possibly increasing litigation and competing claims. Executors should prepare for multiple interested parties and preserve records to defend decisions.

These items are concrete practice points rooted in the Act’s text. They identify where the Act alters normal estate administration, shifts evidentiary burdens, limits private agreement and introduces civil recovery risks that recipients and fiduciaries must manage.

This section outlines practical steps and a compliance checklist for executors, administrators, trustees, interested persons, and legal advisers working with estates where an unlawful killing is alleged or has occurred. The guidance is structured to follow the statutory pathways and to mitigate the risks identified in the Act.

1. Early assessment and enquiries (immediate)

• Determine whether the circumstances involve an “unlawful killing” as defined in s 3. Review whether the death falls within the Criminal Law Consolidation Act 1935 offence list (murder, manslaughter, aiding/abetting, criminal neglect causing death, culpably negligent driving death, etc.) or would so qualify if committed in the State (s 3).
• Check for any existing criminal proceedings, convictions, acquittals, or civil findings concerning the deceased’s cause of death. Section 6(2)(b) allows distribution without a Court order where there is a criminal conviction or a civil finding that the offender committed the unlawful killing.
• If any doubt exists, consider engaging police records, criminal counsel and obtaining local court file information, since s 17 gives conclusive effect to certain certificates and findings.

2. Executors and administrators: apply the statutory duty framework

• If you know, or ought reasonably to know, the forfeiture rule applies, you must distribute the estate in accordance with the rule (s 6(1)). Document the basis for that conclusion and the enquiries made to support the “ought reasonably to know” standard.
• If the facts are uncertain, seek a Court direction under s 6(2)(a). An application for a declaratory order specifying whether or how the forfeiture rule applies gives fiduciaries protection and avoids later recovery claims under s 12.
• If distributing without a Court order under s 6(2)(b) in reliance on a criminal conviction or civil finding, obtain and file documentary proof (for example, a s 42 certificate or registrar certificate, which under s 17 are conclusive).
• Keep records of distributions and correspondence. Even though s 6(3) provides no liability for distributing in accordance with s 6, careful documentation demonstrates good-faith compliance and supports the fiduciary in any later proceeding.

3. Interested persons: protective and enforcement steps

• If you are a beneficiary or other interested person who wants to prevent an offender obtaining benefits, apply for interim preservation orders under s 10 as soon as reasonable grounds to suspect an unlawful killing are present. Interim orders can preserve the value of assets pending final resolution.
• If you receive a distribution that you believe is contrary to the forfeiture rule, consider applying under s 12 for delivery up or payment of an amount equivalent to the value of the benefit.
• Where a conviction is quashed or the offender is found not guilty, apply under s 13 for return of benefits, but ensure all civil and criminal proceedings are finalised and assemble evidence that no new trial or appeal is likely (s 13(2)(a), (b)).

4. Offenders and alleged offenders: modification and defence

• If charged with an unlawful killing, note that you cannot apply for a forfeiture modification order under s 9 until criminal proceedings are finalised (s 9(2)). Preservation of rights depends on criminal outcomes.
• If found mentally incompetent to commit the offence, the forfeiture rule does not apply (s 7(1)). If found mentally unfit to stand trial, the forfeiture rule does not apply except by Court order under s 8; interested persons may apply for such an order, and the Court may treat the alleged offender as if guilty for forfeiture purposes if objective elements are established and the Court considers it in the interests of justice (s 8).
• If seeking a modification under s 9 after criminal finalisation, prepare evidence to establish “exceptional circumstances” for the Court to consider and be ready to address the s 9(5) factors: circumstances of the offence, effect on the offender or other persons, and any other material matters.

5. Trustees and holders of property interests

• Where it appears an offender may obtain property by survivorship, trust distribution, or other non-estate mechanisms, consider applications under s 11 to prevent vesting. Options include applying to convert joint tenancy to tenancy in common, preventing an offender from holding property as a trustee, or preventing trustees from distributing trust property to the offender.
• If serving as a trustee, obtain legal advice before making distributions that might result in exposure to recovery orders under s 12.

6. Evidence strategy and use of certificates

• Obtain any available certificates under s 42 of the Evidence Act 1929 and registrar certificates covering convictions, mental-status findings, and establishment of objective elements. Under s 17 these certificates are conclusive proof for their stated matters and can materially shorten proceedings.
• If relying on a non-South Australian finding or foreign judgement, gather authenticated records and consider whether they can be the subject of a registrar’s certificate or other admissible evidence in the Supreme Court.

7. Timing and limitation management

• Be aware of the time bars in s 16. Applications for an order under this Act must be made (a) within six months after the date of death, or (b) within six months after the finalisation of criminal proceedings, or (c) within three months after the Court has made an order specifying whether or how the forfeiture rule applies, or (d) at any other time with the permission of the Court (s 16). Seek extensions promptly if needed.
• Use interim preservation powers (s 10) if criminal proceedings are protracted to avoid irrecoverable dissipation of assets while s 9 applications are barred.

8. Coordination with criminal-asset authorities

• If the property at issue may fall under the Criminal Assets Confiscation Act due to the Schedule 1 Part 2 amendment, coordinate with any relevant confiscation authority to understand overlapping remedies and avoid duplicated costs and proceedings.
• Consider whether a confiscation action may run in parallel and whether evidence exchange will reduce overall litigation.

9. Regulatory and fee considerations

• Expect subordinate regulations and fee notices under s 18; monitor for rules setting filing fees, procedures and potential waivers. The Minister may prescribe fees under the Legislation (Fees) Act 2019 and provide for waiver, reduction or remission (s 18(3)-(4)).

10. Practical courtroom preparation

• For applications under s 8 and s 9, prepare factual bundles addressing the Court’s mandatory considerations: s 8(4) requires the Court to have regard to the circumstances of the alleged offence, effect on the alleged offender or any other person, and such other matters as are material; s 9(5) requires similar consideration of circumstances of the offence, effects on parties, and other relevant matters.
• If seeking s 8 relief, be prepared to establish the objective elements of the offence either beyond reasonable doubt or on the balance of probabilities, and to address why it is in the interests of justice to apply the forfeiture rule despite the absence of a guilty verdict.
• Where funds need to be preserved to satisfy potential recovery claims, consider applying for freezing or preservation orders early in the process (s 10).

11. Documentation and record-keeping best practice

• Maintain contemporaneous records of enquiries, steps taken to verify criminal/civil outcomes, rationales for distributions, and any legal advice obtained. Good records strengthen the position of executors relying on s 6(3) and help demonstrate reasonableness in the “ought reasonably to know” assessment.
• Document communications with beneficiaries and potential claimants about the effect of the forfeiture rule and likely timing of applications.

This operational checklist flows directly from the Act’s procedural rules, evidentiary devices and timing constraints. For contested or complex estates practitioners should make early strategic decisions about whether to seek Court directions, how to preserve assets pending criminal finality, and when to pursue or resist modification applications.