The Forfeiture Rule: recent cases Mathew Roper 24 th July 2020 www.5sblaw.com
Re Estate of Crippen [1911] P 108 at 112 “ It is clear that the law is that no person can obtain, or enforce, any rights resulting to him from his own crime; neither can his representative, claiming under him, obtain or enforce any such rights. The human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence.” 2 www.5sblaw.com
Gray v Barr [1971] 2 QB 554 at 568H-569A "The logical test, in my judgment, is whether the person seeking the indemnity was guilty of deliberate, intentional and unlawful violence, or threats of violence. If he was, and death resulted therefrom, then, however unintended the final death of the victim may have been, the court should not entertain the claim for indemnity." 3 www.5sblaw.com
Re H [1990] 1 FLR 441 at 443-444 and 446 “Mr Jackson submits that the forfeiture rule does not apply to every case of manslaughter. He pointed out that cases of manslaughter may vary enormously in gravity from the deliberate to the unintentional, and he submitted that in the light of recent authorities the appropriate test was that propounded…in Gray and Another v Barr [1970] 2 QB 626 , 640: has the person been guilty of deliberate, intentional and unlawful violence or threats of violence? [ … ] There is no authority binding on me that compels me to apply that test to a succession case such as the present case. I must choose between following the decision in Re Giles (Deceased) [1972] Ch 544 and following Vinelott J in Re K (Deceased) [1985] FLR 558 in applying the Gray v Barr test. I have no hesitation in taking the latter course. The concepts of public policy are not fixed and immutable. The recent cases show that the courts have come to recognise that so varied are the circumstances which may amount to manslaughter that it would not be just to apply the forfeiture rule in every case of proof of manslaughter.” 4 www.5sblaw.com
Dunbar v Plant [1998] Ch 412 Philips LJ: • “The appropriate course where the application of the rule appears to conflict with the ends of justice is to exercise the powers given by the [1982] Act.” • Re Murphy [2003] WTLR 687 Re Land [2007] 1 All ER 324 • Chadwick v Collinson [2014] EWHC 3055 • 5 www.5sblaw.com
Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011 “ 46A Disclaimer or forfeiture on intestacy (1) This section applies where a person — (a) is entitled in accordance with section 46 to an interest in the residuary estate of an intestate but disclaims it, or (b) would have been so entitled had the person not been precluded by the forfeiture rule from acquiring it. (2) The person is to be treated for the purposes of this Part as having died immediately before the intestate. (3) But in a case within subsection (1)(b), subsection (2) does not affect the power conferred by section 2 of the Forfeiture Act 1982 (power of court to modify the forfeiture rule). (4) In this section “forfeiture rule” has the same meaning as in the Forfeiture Act 1982.”. “ 33A Disclaimer or forfeiture of gift (1) This section applies where a will contains a devise or bequest to a person who — (a) disclaims it, or (b) has been precluded by the forfeiture rule from acquiring it. (2) The person is, unless a contrary intention appears by the will, to be treated for the purposes of this Act as having died immediately before the testator. (3) But in a case within subsection (1)(b), subsection (2) does not affect the power conferred by section 2 of the Forfeiture Act 1982 (power of court to modify the forfeiture rule). (4) In this section “forfeiture rule” has the same meaning as in the Forfeiture Act 1982.”. 6 www.5sblaw.com
Forfeiture Act 1982 1. — The “forfeiture rule” (1) In this Act, 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. (2) References in this Act to a person who has unlawfully killed another include a reference to a person who has unlawfully aided, abetted, counselled or procured the death of that other and references in this Act to unlawful killing shall be interpreted accordingly. 7 www.5sblaw.com
2. — Power to modify the rule (1) Where a court determines that the forfeiture rule has precluded a person (in this section referred to as “the offender” ) who has unlawfully killed another from acquiring any interest in property mentioned in subsection (4) below, the court may make an order under this section modifying the effect of that rule. (2) The court shall not make an order under this section modifying the effect of the forfeiture rule in any case unless it is satisfied that, having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to the court to be material, the justice of the case requires the effect of the rule to be so modified in that case. (3) In any case where a person stands convicted of an offence of which unlawful killing is an element, the court shall not make an order under this section modifying the effect of the forfeiture rule in that case unless proceedings for the purpose are brought before the expiry of the period of three months beginning with his conviction. (4) The interests in property referred to in subsection (1) above are — (a) any beneficial interest in property which (apart from the forfeiture rule) the offender would have acquired — (i) under the deceased's will…or the law relating to intestacy…; (ii) on the nomination of the deceased in accordance with the provisions of any enactment; (iii) as a donatio mortis causa made by the deceased; or (iv) under a special destination (whether relating to heritable or moveable property); or (b) any beneficial interest in property which (apart from the forfeiture rule) the offender would have acquired in consequence of the death of the deceased, being property which, before the death, was held on trust for any person. […] 8 www.5sblaw.com
3. — Application for financial provision not affected by the rule (1) The forfeiture rule shall not be taken to preclude any person from making any application under a provision mentioned in subsection (2) below or the making of any order on the application. (2) The provisions referred to in subsection (1) above are — (a) any provision of the Inheritance (Provision for Family and Dependants) Act 1975… 4. — Upper Tribunal to decide whether rule applies to social security benefits. […] 5. Exclusion of murderers. Nothing in this Act or in any order made under section 2 or referred to in section 3(1) of this Act…shall affect the application of the forfeiture rule in the case of a person who stands convicted of murder. 9 www.5sblaw.com
Re Ninian (Deceased) [2019] EWHC 297 (Ch) • 2013 – Mr Ninian was diagnosed with Progressive Supra-nuclear Palsy 2016 – Mr Ninian contacted • Dignitas • 2016/17 – Mrs Ninian provided administrative assistance to Mr Ninian in his application to Dignitas • 2017 – Mr Ninian committed suicide in Switzerland 10 www.5sblaw.com
Re Ninian (Deceased) [2019] EWHC 297 (Ch) “48. Once the court is satisfied that the forfeiture rule applies, the court may have regard to both conduct and other material circumstances. I can see no justification for putting a constraint upon the circumstances that the court may regard as being material…[Mummery LJ’s] observations [in Dunbar v Plant ] about the scope of the discretion are of assistance: “The court is 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 has 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.” 49. It seems to me that it will also be helpful to have regards to paragraphs 43 and 45 of the DPP’s Policy Statement where a decision has been made, applying the principles it sets out, that a prosecution is not in the public interest…” 11 www.5sblaw.com
Re Ninian (Deceased) [2019] EWHC 297 (Ch) The court will wish to be informed about the background to the claim with complete candour. A • decision by the CPS not to prosecute, because it is considered not to be in the public interest to do so, is an important factor for the court to take into account. • Where the claim is opposed, it is likely that a directions hearing will be needed for the court to determine whether any witnesses will be required to attend for cross-examination and whether the disposal hearing should be before a Master or a High Court judge. Even in unopposed cases, it is unlikely that the court will ever feel able to deal with a claim of • this type without a hearing due the benefit that is obtained from oral submissions from counsel. There may be some unopposed cases in which the court will find it helpful for the claimant, and • possibly other witnesses, to provide oral evidence. Whether that is necessary may depend upon the view taken by the court about the degree of candour displayed in the witness statements. 12 www.5sblaw.com
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