A recent court ruling on the forfeiture rule

2 February 2018

The High Court recently exercised its discretion pursuant to Section 2 of the Forfeiture Act 1982 (“FA 1982”) in the case of Macmillan Cancer Support v Hayes and Long [2017] EWHC 3110.

In this very sad case, Peter Thompson, an elderly gentleman (84), had suffocated his much loved wife, Mary Thompson, and then taken his own life after he was diagnosed with cancer and Mary was to be consigned to a nursing home in the immediate future. The court was asked to (1) grant Peter full relief from forfeiture in respect of his interests in Mary’s estate and (2) make a declaration that on the true construction of Section 33A of the Wills Act 1837 (as inserted by section 2 of the Estates of Deceased Person (Forfeiture Rule and Law of Succession) Act 2011) Mary’s Will should take effect on the basis that Peter be treated as having died immediately before Mary. The case was bought by Macmillan Cancer Support, who sought to benefit from charitable donations made under each of the wills, against the executors of Peter and Mary’s estates.

Mr Justice Mark Raeside QC accepted that this was an unlawful killing and took into account a range of circumstances in reaching his determination as to whether the forfeiture rule should be applied including: (i) Peter and Mary’s long and happy marriage; (ii) the fact that Peter genuinely believed that he was acting in Mary’s best interest in taking her life and that it was morally justifiable to do so; (iii) Peter did his upmost to ensure that Mary was comfortable and did not suffer in her death; (iv) Mary and Peter did not have children; and (v) there were no moral claims from those who would have benefited had the forfeiture rule not applied. Mr Justice Mark Raeside QC gave total relief against forfeiture. He said that he “would have difficulty in believing that the public interest would give rise to any other conclusion”.

Mr Justice Raeside considered that having satisfied himself that relief from forfeiture should be given that it was unnecessary to look at Section 33A however he did note that concern had been expressed in one of the leading text books in this area “Williams on Wills” as to whether the Law Commission’s clear intention to enable a child of a killer to inherit had actually been achieved by the insertion of Section 33A of the Wills Act 1837. In the case of Peter and Mary they did not have any children that could inherit.

On 24 June 1998 Mrs Kathleen Grundy was administered a fatal dose of diamorphine by her general practitioner Harold Shipman. On 31 January 2000, a jury found Shipman guilty of 15 counts of murder and one count of forgery. His last victim was Kathleen Grundy and the forgery of her will the beginning of the end for Shipman. A typewriter in his surgery had been used to produce Kathleen Grundy’s will which read “I give all my estate, money and house to my doctor”. Such were Kathleen Grundy’s daughter’s suspicions concerning her late mother’s will that she alerted her local police force and so began the extensive investigations culminating in the criminal trial and subsequent inquiry which established that Shipman had in fact probably committed well in excess of 200 murders.  Whilst Shipman is reported to be the only doctor in the history of British medicine to be found guilty of murdering his patients, he is by no means the only person to have set out to benefit at the expense of another person’s life.

It is well established that a murderer cannot benefit from his own crime and consequently is not entitled to inherit under the will of his victim or on intestacy (the common law rule often referred to as the “forfeiture rule”). In the case of Cleaver v Mutual Fund Life Association [1892] 1 QB 147, where a husband who had taken out a policy on his life in favour of his wife who was later convicted of murder having poisoned him, the forfeiture rule was also found to apply to life assurance benefits.

The FA 1982 records that the forfeiture rule “means the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing”. The rule applies to perpetrators who have committed manslaughter, aided and abetted unlawful killing and aided and abetted suicide.

Section 2 of the FA 1982 enables the court to modify the effect of the rule on the person who unlawfully killed thus enabling them to benefit from an estate that has come to be as a result of the unlawful killing. This provision enables the court to use their discretion and is particularly apt in cases of domestic violence and diminished responsibility.

In deciding whether the justice of the case requires a modification of the rule pursuant to Section 2, the court will look at all of the material circumstances including (i) the offender’s relationship with the deceased; (ii) the degree of moral culpability; (iii) the nature and gravity of the offence; (iv) the intentions of the deceased; (v) the size of the estate and the value of the property in dispute; (vi) the financial position of the offender; and (vii) the moral claims and wishes of those who would be entitled to take the property on the application of the forfeiture rule (Dunbar v Plant [1998] Ch 412).

Historically, the difficulty with the application of the forfeiture rule (unmodified) was that not only would the murderer miss out on his or inheritance so too would their offspring. In Re DWS (deceased) [2001] Ch 568 (CA) the murderer was convicted of killing both of his parents. The Court of Appeal found that not only was the murderer not allowed entitled to benefit from his parents nor was his son. The Estate of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011, which came into effect on 1 February 2012 sought to address this issue by deeming the person whose interest has been forfeited in accordance with the forfeiture rule (i.e. the perpetrator of the unlawful killing) to have died before the deceased.

Section 3 of the FA 1982 provides that the forfeiture rule will not preclude a person from making a claim under various statutory provisions including the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”).

In Land v Land [2006] EWHC 2069 (Ch), [2007] 1 All ER 324, the court considered whether a claim could be made pursuant to the 1975 Act in circumstances whereby the will bequeathed the entire estate to the claimant (so reasonable provision had been made) but by virtue of the fact he had pleaded guilty to the manslaughter of his mother was prevented from taking it by operation of the forfeiture rule. The court considered that Section 3 of the FA 1982 enabled an order to be made under the 1975 Act irrespective of the fact it was the forfeiture rule as opposed to the terms of the will that had created the situation by which reasonable financial provision had not been made for the claimant.

It should be noted that a claim pursuant to the 1975 Act would be limited to reasonable financial provision whereas a modification of the rule could result in the applicant benefitting from the entirety of the estate. Moreover, it is important to be mindful of the limitation periods – three months from conviction when seeking a modification pursuant to the forfeiture rule and six months from issue of the grant of probate in a 1975 Act claim. 

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