In a recent case the High Court exercised its discretion, pursuant to s.2 Forfeiture Act 1982 (FA 1982) to modify the effect of the forfeiture rule taking into account the circumstances of the case.
The forfeiture rule is a longstanding public policy that prevents someone who has unlawfully killed another person from inheriting from that person’s estate. The policy derives from the wider rule that a person cannot benefit from his or her own crime. However, as mentioned the courts have the power to grant relief against the effects of the forfeiture rule.
In this case, Peter Thompson (84), unlawfully killed his wife, Sheila (88) and then took his own life after he was diagnosed with cancer and Mary was to be consigned to a nursing home in the immediate future. They were a loving and devoted married couple who had no children.
Peter was found hanging in the hallway of their home with an envelope attached to his chest recording the time his wife had approximately died on 18 April 2015. Sheila was found fully clothed peacefully lying in a reclining chair in the sitting room. On the table next to her was a typed letter dated 18 April 2015 addressed to the coroner and signed by Peter. The letter explained that he and his wife had previously discussed the future and agreed that when their normal lives were over it would be better for both to bring their lives to a close while still capable of doing so. The letter went on to explain that Peter had recently been diagnosed with prostate cancer and had a grossly enlarged aorta which could rupture at any time. He recorded that Sheila would be heavily sedated and then suffocated and that he would then hang himself.
Sheila was herself suffering from advanced dementia and did not have the necessary capacity at the time of her death to consent so, had Peter lived, he would have been charged with murder.
Sheila’s Will provided that everything should pass to Peter, provided that he survived her. Her Will further provided that if Peter was not proved to have survived her then the additional clauses in her Will would take effect, which provided for a number of gifts to charities and friends.
Peter’s Will provided for the same charities and friends as were named under his wife’s Will.
Peter survived Sheila, but under the forfeiture rule his benefits under the Will would forfeit. This meant Sheila was intestate, and under the rules of intestacy some distant relatives in Australia would have benefitted. The wording of the rule was ambiguous and meant that the friends and charities would not benefit.
Macmillan, a charity named in the Will made an application for the relief of the forfeiture rule so that Sheila’s beneficiaries could benefit via Peter’s Will.
Section 2 of the FA 1982 allows the court to modify the effect of the forfeiture rule if 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’, provided that the person who killed another has not been convicted of murder.
In this instance, Peter was not convicted for Sheila’s murder so it was open to the court to decide whether to grant the relief.
The Judge considered the facts, having regard to three factors; (1) the conduct of the offender; (2) the conduct of the deceased; and (3) other material circumstances.
1. Peter’s conduct:
It was a premeditated, open, honest and straight forward killing. He had left details to assist the investigations.
2. Sheila’s conduct:
On the balance of probable facts her severe dementia meant that she could not be responsible for her own conduct.
3. Other circumstances:
The Judge considered several factors set out in an earlier case (Dunbar v Plant  Ch 412). It looked at the importance of their relationship and that Peter and Sheila had a long and happy marriage. It was important that Peter genuinely believed that he was acting in Sheila’s best interest in taking her life and ensured that she was comfortable and did not suffer. The previous agreement that they would bring their lives to an end in the event their ‘normal lives’ were over. Furthermore, Peter did not achieve any financial benefit from his wife’s death as he committed suicide afterwards.
The matter was given total relief against forfeiture taking into account the facts above. The Judge said that he “would have difficulty in believing that the public interest would give rise to any other conclusion”.
The assets formed part of Peter’s estate and were distributed amongst the friends and charities both Peter and Sheila had listed in their Wills.
Had the Wills in this instance been drafted better there may not have been a need to take the matter to the High Court.
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Dated: 27/02/2018 by Samantha Kennedy