Cross Practice Insights Part 1: Criminality in Estate Disputes

In part 1 of our five-part cross-practice insights series, this blog explores criminality in Estate Disputes.

Over the past year there have been many headline grabbing articles in the press that demonstrate the relatively common place crossover between the criminal and civil law when dealing with disputes surrounding wills, probate, trusts and estate administration. These include the case of the law firm employee sentenced to four years in prison for siphoning charity donations from the estates of deceased individuals over a 13 year period, the case of Grierson v Grierson [2024] EWHC 3048 (Ch) where it was alleged that one of the deceased’s sons had forged his mother’s signature on a will and a deed of transfer, and a mother who stole her daughters inheritance from their late grandmother’s estate whilst acting as a trustee.

We have also seen significant press coverage surrounding the Terminally Ill Adults (End of Life) Bill which gives rise to potential cross over between civil and criminal issues, particularly around the interaction between the forfeiture rule and assisted suicide and going forward expressed concerns of financial abuse through assisted dying. Below we look at some of the considerations and potential issues arising in these types of cases.

Unlawful killing

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 (often referred to as the “forfeiture rule”).

The Forfeiture Act 1982 (“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 someone in ending their life.

Section 2 of 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 relevant in cases of domestic violence, diminished responsibility and more recently, where someone has been assisted to end their life.

In deciding whether the justice of the case requires a modification of the Section 2 rule, the court will look at all of the material circumstances. In a 2019 case where a widow had accompanied her husband to his assisted suicide at Dignitas, and was subsequently successful in her application for relief against forfeiture (Ninian v Findlay & Ors [2019] EWHC 297 (Ch)), the judge emphasised the sensitivity of the court’s discretion under FA 1982 due to the interplay of different elements of the justice system and made clear that he considered the decision by the Crown Prosecution Service (“CPS”) not to prosecute the widow to be an important factor in his determination.

Is a criminal conviction necessary for the forfeiture rule to apply?

The usual tests for criminal liability and civil liability are different - in a criminal case the court or jury must be ‘sure’ of a defendant’s guilt (also known as ‘beyond reasonable doubt’), whereas in a civil matter a court need only be satisfied to the balance of probabilities (i.e. that it is more than 50% likely the facts as put by the claimant occurred). So it is possible for different decisions to be reached regarding the same facts in civil and criminal proceedings.

The case of Leeson v McPherson [2024] EWHC 2277 (Ch) which involved the tragic death of Ms Leeson while on holiday with her husband Mr McPherson is an example of this, Despite Mr McPherson having been acquitted of murder by a jury in criminal proceedings, the deceased’s son and father were successful in bringing a forfeiture claim against him following the court’s finding that Mr McPherson had deliberately and unlawfully killed Ms Leeson.

The Terminally Ill Adults (End of Life) Bill

The Terminally Ill Adults (End of Life) Bill proposes that certain terminally ill adults be permitted to end their lives with medical assistance. If the Bill is passed, the proposed legislation is expected to set out how a person may assist a terminally ill individual to end their life, what steps are capable of amounting to assistance, and that lawful steps taken in accordance with any new legislation would not result in the forfeiture rule applying.

It should be noted that Section 3 of 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”).

Fraud

If the content of a will does not set out the true, informed intentions of the testator it may be possible to contest the will on the grounds of fraud. For example, a will could be fraudulent if the deceased has made a bequest to a beneficiary on the basis of misrepresentations made by another person. Or, someone might have impersonated the testator in order to execute a will or trust document. Or, a valid will might have been destroyed by a third party seeking to benefit from a previous will or intestacy.

Challenging a will solely on the basis of a fraud is difficult, not least because the deceased is likely to be the only first-hand witness and obviously not able to give evidence. The burden of proof on a criminal fraud allegation is higher than usual in a civil case. It should however be borne in mind that it might still be possible to challenge the will on another ground (most likely that the deceased did not have the requisite knowledge and approval of the contents of the will).

Criminal fraud is an offence prosecuted by the CPS, the Serious Fraud Office, private prosecutors or other authorised prosecution agencies and is triable before both the magistrates’ and the crown courts, depending on the seriousness of the fraud. If there is a finding of guilt (either from a verdict following a contested trial or a plea of guilty) a defendant could face a sentence of up to 10 years’ imprisonment. The prosecutor may also seek recovery of the fraudulently obtained money, along with any other proceeds of crime.

In May 2024 it was reported that Ms Katherine Hill was convicted of fraud by abuse of position when she took a £50,000 inheritance from her daughters which had been left to them by Ms Hill’s mother. The inheritance was supposed to be held on trust for Ms Hill’s daughters until they reached the age of 25, however, Ms Hill withdrew all the money in the account and the money remains missing. Ms Hill was said to have been assisted in the fraud by her 93-year-old father. Ms Hill was sentenced to 30 months in prison.

Theft

Under section 1 of the Theft Act 1968 a person is guilty of theft if they dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it. Section 2 of the Theft Act 1968 sets three statutory circumstances when a person ‘honestly’ appropriates – namely where they have a belief: a) of a right in law to appropriate the property; b) that the owner would have consented; or c) that the owner could not be discovered by taking reasonable steps. If none of these situations apply, a court/jury will have to undertake an assessment of whether the defendant was ‘dishonest’. The leading case on the test for dishonesty is Ivey v Genting Casinos [2018] AC 391. Ivey v Genting Casinos held that a court or jury must determine: (a) what was the defendant’s actual state or knowledge or belief as to the facts; and (b) was the defendant’s conduct dishonest by the standards of ordinary decent people. Acts of theft can often be a feature involving financial abuse of the elderly or vulnerable by supposed loved ones.

Stephen Rule pleaded guilty on 8 February 2024 to two counts of theft at Bournemouth Crown Court. He was one of the beneficiaries of Donald Rule’s will. Donald Rule’s will stipulated that his property should be divided between Stephen Rule, his brothers and grandson. However, Stephen Rule facilitated the sale of the property and failed to split the proceeds with the other beneficiaries as stipulated in the will. Evidence showed that Stephen Rule used the proceeds to purchase another property. Despite being 71 years old and in ill health, Stephen Rule was sentenced to two years and nine months imprisonment in total. The sentencing judge placed the offence in the most serious category of harm and culpability given the “substantial sum” stolen, the significant planning involved to carry out the theft, and the breach of a high degree of trust.

Forgery

Forgery is one of the civil grounds for contesting the validity of a will. The will might have been forged in its entirety or it could simply be that the signature of the person making the will has been forged. Should a will challenge be successful on the grounds of a forgery, then it will be declared invalid.

Sections 1 to 5 of the Forgery and Counterfeiting Act 1981 set out a number of criminal offences of forgery. These include: making, copying, and using a copy of a false instrument. In each case the prosecution must prove that the act of forgery is combined with an intention, by the person, that he or another shall use it to induce somebody to accept it as genuine (or a copy of a genuine instrument), and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

In these types of cases it is important to be aware from the outset that civil or criminal liability is a possibility. Whether parallel proceedings are already in motion, or matters subsequently come to light that may give rise to police involvement, knowledge and a sensitive approach is key when juggling the potential financial consequences of a particular matter alongside a criminal prosecution and the chance that those involved could face a prison sentence. 

The overarching takeaway when dealing with these types of cases is, on the simplest level, to be aware that civil or criminal liability is a possibility. Whether parallel proceedings are already in motion, or matters subsequently come to light that may give rise to police involvement, knowledge and a sensitive approach is key when juggling the potential financial consequences of a particular matter alongside a criminal prosecution and the chance that those involved could face a prison sentence.

Further information

If you have any questions regarding this blog, please contact Katherine Pymont or Sophie Tang.

 

About the authors

Katherine Pymont is a Partner in the Dispute Resolution Team who specialises in Trust and Estate Disputes. Her experience in the field of Trusts and Inheritance Disputes covers challenging the validity of wills (including claims for lack of testamentary capacity, want of knowledge and approval, fraud, forgery and undue influence), claims under the Inheritance (Provision for Family and Dependants) Act 1975, removal of executors and trustees, breach of trust claims, fraud cases involving trust structures and professional negligence claims relating to wills and trusts. 

Sophie Tang is an Associate in the Criminal Litigation team. Sophie’s practice includes all areas of criminal litigation, with particular expertise in general crime and white collar crime. She represents individuals and corporate clients from the initial stages of an investigation through to trial.