In 2023, a wife made an anonymised submission to Parliament regarding the Assisted Dying debate, and her husband’s decision to end his life at Dignitas following a diagnosis with motor neurone disease. The wife explained that her husband had done the majority of the work but that by the time it came to book flights and accommodation he was totally paralysed and she helped do this. Following an anonymous tip off, less than two weeks before the couple were due to travel an assisted suicide investigation was started by the police and social services. Though the wife was not prosecuted, this caused the couple distress at an already difficult time that ultimately extended far beyond the husband’s eventual death.
Aside from the potential risk of criminal liability, another significant issue that couples and families need to understand when considering providing support in the context of assisted dying, is the forfeiture rule.
The forfeiture rule
The forfeiture rule prevents a person who has unlawfully killed another (including aiding, abetting, counselling or procuring the death of another) from benefiting from their estate. Someone who played a role in facilitating a loved one’s death at Dignitas, could find the rule engaged, leaving them potentially excluded from an estate they were otherwise due to inherit, regardless of whether they were convicted of any offence. A person affected by the rule can ask the court to disapply it, and courts have shown themselves willing to grant such relief, particularly in compassionate circumstances. However, if the application is opposed the application is likely to be more complex and costly.
No one truly knows another’s relationship
However, loving and committed a couple is, third parties, whether estranged family, adult children from a previous relationship, or others with a financial interest in the estate may become suspicious about undue influence or coercion having played a part in someone’s decision to end their life. Those suspicions are more likely to arise, in families where relationships are already strained.
It would be easy to dismiss such concerns as cynical, but the reality is that practitioners regularly encounter genuine cases of undue influence and abuse in the context of will disputes.
Therefore, the courts need to consider these applications carefully, however sympathetic the circumstances appear. The person seeking relief from forfeiture, will usually need to provide detailed evidence about their relationship with the deceased, how the decision to end their life was made, and steps taken to support the deceased leading up to their passing.
Evolving landscape
While the Assisted Dying Bill ran out of time to become law in the last parliamentary session, the possibility of it returning remains high, after several supporters of the legislation were amongst those who recently won the ballot to introduce a private member’s bills.
Many assume that if introduced, the need for travel to Dignitas would disappear. However, the scope of the proposed legislation is limited, with it only applying to people who have six months left to live, meaning that the legal risks will remain for anyone who falls outside the scope of the legislation.
