Partner Philip D'Arcy, head of our Dispute Resolution team, explains the Forfeiture Rule in the context of unlawful killing, assisted suicide and inheritance.
It is a staple of crime dramas that under English Law if you unlawfully kill someone then you cannot benefit from their death in any way. You forfeit any right to inherit under what is known as the forfeiture rule. A similar rule in the USA goes by the rather more colourful name of the “slayer” rule.
Clearly it would be wrong if a murderer were to benefit from his crime. However the rule is far wider than that as it covers cases of accidental killing, so called mercy killings or assisted suicide and failed suicide pacts.
To mitigate the sometimes harsh effects of the rule the Forfeiture Act 1982 gives the court the power to modify or disapply the rule and allow flexibility where the circumstances warrant it, in cases other than murder.
In a 1985 case (Re K) a wife was convicted of manslaughter after accidentally killing her violent and abusive husband. She was described as a loyal wife who suffered grave violence at the hands of her husband and was granted relief and allowed to succeed to the jointly owned home and inherit under his will. Similarly in Dunbar vs Plant an engaged couple made a suicide pact to hang themselves by jumping off a ladder at the same time but although Mr Dunbar died Miss Plant survived. Although no charges were brought this was a case of aiding and abetting suicide which is a crime. The court initially granted her only partial relief but on appeal she was allowed to fully inherit. The court said: “…in the case of the survivor of a suicide pact the public interest would not normally call for forfeiture”.
More recently in Ninian vs Findlay , Mrs Ninian made arrangements for her husband, who suffered from an incurable degenerative disease to end his life through assisted suicide in a Swiss clinic. Afterwards she reported herself to the police who decided that it was not in the public interest to prosecute as this was a compassionate act. Without her involvement her husband would not have been able to attend the clinic so although she was not prosecuted the rule applied. The court had no hesitation in granting her relief. The couple had been married for 34 years and it was clear that the husband had capacity, a determination to end his life, had taken legal advice and that she had not wanted him to but felt she had to assist. Had the forfeiture rule applied his brothers would have inherited, but they supported her application for relief.
Henderson vs Wilcox and others shows that a court will not always exercise discretion. In this case a 63 year old man with learning difficulties had been convicted of manslaughter of his elderly mother for whom he had been caring for some time. His frustrations at their role reversal had boiled over and he attacked her breaking some ribs and causing internal bleeding which resulted in her death. He had no intention of killing her or even causing her serious harm. Despite some sympathy for the claimant who was ill equipped for his role as carer, the judge declined to allow him to inherit any of the estate worth about £150,000 that had been left to him in his mother’s will.
A case in 2000 showed that the rule can affect next generation. In DWS a son was convicted of murdering both his parents neither of whom had made a will. His son, the couple’s only grandson, claimed that both estates should pass to him but the court declared that the effect of the rule was that the estates went to more distant relations. Following this decision the Wills Act was amended to provide that in such circumstances the offender is to be treated as if he had died before the victims, so that in a future case on the same facts, the grandchild would inherit. Unfortunately as a result of what seems to be a drafting error, this amendment only applies on an intestacy and would not help in a case where is a will.
Philip D’Arcy is a member of ACTAPS, the Association of Contentious Probate and Trusts Specialists.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.