Avoiding Prison Bars, But Gaining a Bar to Inheritance: A Statutory Solution for the Insane Slayer Through a Comparative Approach

Abstract

If a solution cannot be found within states, it’s time to look outside our own borders. This Article does just that. With murder amongst family members slowly becoming a frequent phenomenon, comes the burden of determining inheritance. This burden grows exponentially, however, when the slayer is later found not guilty by reason of insanity as a result of a mental illness at the time of the killing. States have grappled with their treatment of the insane slayer in different ways, either by letting them inherit due to their lack of intent, or by refusing to let them inherit under public policy justifications. By arguing that the insane slayer should be able to inherit due to their lack of intent at the time of the killing and the uncontrollable genetic inheritance of their mental illness, this Article is the first to present a solution for the insane slayer through a comparative approach. Specifically, by adopting statutory language from the Forfeiture Act of 1995 No. 65 in New South Wales, Australia. This piece of legislation weighs the conduct of the offender, the conduct of the deceased, the effect of the rule on the defendant and other persons, and any other matters the court finds material. As a result, this Act exudes the discretion, subjectivity, and fairness that the traditional American slayer statute lacks. By consolidating language from the Forfeiture Act of 1995 and traditional American slayer statutes, the statutory solution proposed in this Article has the potential to protect the insane slayer in ways other laws have failed to do.