Administration of estates – Forfeiture rule – Modification – Forfeiture Act 1982 – Suicide Act 1961 – Claimant’s wife ending own life with assistance of claimant – Acts of claimant sufficient to engage forfeiture rule precluding beneficial interest in property under deceased’s will – Claimant seeking order modifying effect of forfeiture rule – Whether justice of case requiring modification sought – Claim allowed
The claimant’s late wife (M) was suffering from a rare and degenerative neurological disorder with no known cure when she ended her own life in December 2023, aged 73, at a clinic in Switzerland. The parties accepted that M was assisted by the clinic staff and the claimant.
Section 1 of the Forfeiture Act 1982, in certain circumstances, precluded a person who had unlawfully killed another from acquiring a benefit in consequence of the killing (the forfeiture rule).
Section 2(1) of the Suicide Act 1961 provided that a person committed an offence if they did an act capable of encouraging or assisting the suicide or attempted suicide of another person, and the act was intended to encourage or assist suicide or an attempt at suicide. The forfeiture rule applied to such an offence: see Dunbar v Plant [1998] Ch.
It was accepted that the role played by the claimant was sufficient to engage section 2(1) of the 1961 Act because, despite his great reluctance, he did acts capable of assisting M’s suicide with the requisite intention to do so.
Under section 2(2) of the 1982 Act, the court could make an order modifying the effect of the forfeiture rule if it was satisfied that the justice of the case required it. The claimant applied under section 2(2) for relief modifying the effect of the forfeiture rule as it applied to his interest in M’s estate.
Held: The claim was allowed.
(1) The statute required the court to have particular regard to the conduct of M and the claimant when determining the justice of the case. There were clear indications in the legislation (most especially section 2(4) which required the consent of the DPP for a prosecution) that there were circumstances in which the public interest did not require the imposition of any penal sanction, a consideration which linked directly to the proper application of the forfeiture rule. Where the public interest required no penal sanction, there were strong grounds for relieving the person who had committed the offence from all effects of the forfeiture rule.
The first and paramount consideration for the court on exercising its discretion under the 1982 Act was an assessment of whether the culpability attending the beneficiary’s criminal conduct was such as to justify the application of the forfeiture rule at all. Although assessing the blameworthiness of an offender was a familiar exercise for a sentencing judge in the criminal jurisdiction, the exercise was not welcomed by a judge exercising a civil law jurisdiction as the test for determining entitlement to property. An assessment was required nonetheless, but it was likely to be appropriate to relieve the unsuccessful party to a suicide pact of all effect of the forfeiture rule. Each case had to be assessed on its own facts.
(2) The court was entitled to take into account a whole range of circumstances relevant to the discretion, quite apart from the conduct of the offender and the deceased: the relationship between them; the degree of moral culpability for what happened; the nature and gravity of the offence; the intentions of the deceased; the size of the estate and the value of the property in dispute; the financial position of the offender; and 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 followed.
In the present case, there had been no formal determination by the Crown Prosecution Service that the claimant’s conduct was such that the public interest did not require any penal sanction. The claimant did all that could have been expected to report his role in M’s death but it was plain that the police took the view that there were no grounds for further investigation and that it was not in the public interest for there to be a prosecution. However, the circumstances of what occurred required the court to consider for itself the published public interest factors which tended in favour of and against prosecution. Having considered the 16 public interest factors which tended in favour of prosecution, the court was satisfied that none of them were present in this case. It was clear that the public interest factors against prosecution were clearly made out in this case.
(3) The question for the court was always whether any particular acts, whether or not part of a course of conduct, were capable of encouraging or assisting the suicide. That was an objective question. Depending on the circumstances and what occurred on the journey, the mere act of accompaniment might in itself need to be construed as an act of encouragement or assistance but that was not the present case. In particular, the use of the word “capable” was intended to mean that the court was only required to consider whether accompaniment might in some theoretical circumstances constitute an act of assistance: Re Ninian deceased, Ninian v Findlay [2019] EWHC 297 (Ch) considered.
Where an application was made for modification of the forfeiture rule in a case of this sort, and those next-entitled under the will accompanied the deceased to the place where they took their own life and were present when they did so, the court would always need to give very careful consideration to the evidence bearing on the role which they played before satisfying itself that all necessary parties had been joined. It would sometimes be difficult to reach the conclusion that the proceedings had been properly constituted without having a short directions hearing and this was such a case.
(4) The combination of M’s determination to proceed and the claimant’s reluctant willingness to assist (but only because she was so determined) were clear indicators that the assistance he gave could not be characterised as encouragement. In any event, the acts which he did were not intended by him to be such, so as to fall within section 2(1)(b) of the 1961 Act. Having regard to the claimant’s and M’s conduct, and all the material circumstances, the justice of the case required the effect of the forfeiture rule to be modified pursuant to section 2(1) of the 1982 Act.
Toby Bishop (instructed by Michelmores LLP) appeared for the claimant; John Critchley (instructed by Michelmores LLP) appeared for the first and second defendants; William East (instructed by Dixon Ward) appeared for the third defendant.
Eileen O’Grady, barrister
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