As the Terminally Ill Adults (End of Life) Bill makes its way through Parliament, we consider the implications of the forfeiture rule, its historical development, and how this anticipated change in criminal law could affect it.
Unlawful killing in the criminal and civil courts
As one would expect, it is for the criminal court to decide whether someone is a murderer. A criminal judge can direct a jury to make this finding if someone has unlawfully killed a human being with an intention either to kill or to inflict grievous bodily harm on that person.
However, decisions about unlawful killing are not confined to the jurisdiction of the criminal courts. Under the Forfeiture Act 1982, civil judges are empowered to decide whether someone can acquire a benefit, such as an inheritance, from having unlawfully killed someone else. This is called the "forfeiture rule" and operates alongside the criminal concept of murder.
It follows that both criminal and civil judges may assess whether there has been an unlawful killing in parallel proceedings, if the accused is in a position to benefit from the death. The key difference is that civil judges are not subject to the same standard of proof as their criminal counterparts. Instead of having to satisfy themselves that there has been an unlawful killing beyond reasonable doubt, they need only consider whether it appears that there was an unlawful killing on the balance of probabilities. This is an easier threshold to meet and means that it is possible for a civil judge to find that there has been an unlawful killing where a criminal judge could not.
Different standards of proof: a forfeiture case study
The case of Leeson and Leeson v McPherson [2024] EWHC 2277 (Ch) is a useful illustration of this rule. The Defendant, Don, had a history of fraudulent behaviour, having been convicted of 31 dishonesty offences in three countries, and having used at least eight aliases over the course of his life. In 2014 he married Paula, and they moved into a new home together. During their relationship, Don took out significant life insurance policies on Paula's life and repeatedly confirmed with the insurance provider how and when the policies would pay out. In the summer of 2017, the couple went on holiday to Denmark. There was an incident in the swimming pool at their villa, after which Paula sadly died. Don claimed he was in the villa at the time of the incident.
The circumstances were suspicious, and Don was charged with Paula's murder by the Greater Manchester Police. However, the jury acquitted him because there was insufficient evidence to prove beyond reasonable doubt that he had murdered her. Ben, Paula's son, and Willy, her father, argued that it was still possible to find that Don had unlawfully killed Paula on the civil standard of proof, since the court need only be satisfied of this on the balance of probabilities. The civil judge agreed, and, applying this lower standard of proof, held that Don had unlawfully killed Paula and could not obtain the benefit of the life insurance policies he had put in place.
The beginnings of forfeiture law
It is striking that a civil judge can make a ruling of unlawful killing, which seems at first glance to belong to the jurisdiction of the criminal court. To understand the need for the forfeiture rule, and the potentially surprising civil rulings that can arise from it, it is helpful to consider how it came to be.
The rule was born in the case of Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, which was heard by the Court of Appeal. In that case, life insurance policies had been taken out on a man's life in his wife's favour; then, she was convicted of murdering him with poison, and was denied the benefit which those policies would have afforded her. The similarity between this historic case and the recent Leeson v McPherson judgment is notable.
Consequently, the rule was expanded upon in the case of Re Estate of Cunigunda (otherwise Cora) Crippen [1911] P 108, which concerned the estate of the notorious Dr Crippen's late wife. Cora had been a famous music hall singer, and one night, after a party at the couple's house in Kentish Town, she vanished in suspicious circumstances. Dr Crippen invented various explanations for her disappearance, and swiftly left for Canada with his mistress, Ethel le Neve. The police were sceptical about his intentions in apparently fleeing the country and searched his house after he had gone; they found Cora buried under the floor of his basement. Chief Inspector Walter Dew, who was managing the investigation, boarded a faster transatlantic ship and arrived in Quebec ahead of Dr Crippen, consequently arresting him.
Dr Crippen was found guilty of Cora's death on 22 October 1910, and was sentenced to death in accordance with the law of the time. Before he died, he made a Will appointing Ethel as the executrix of his estate. This would also have given her the power to administer and inherit the late Cora's estate once the Will took effect. Cora's sister, Theresa Hunn, brought proceedings to prohibit her from doing so, particularly since Ethel was rumoured to have assisted Dr Crippen in Cora's killing. Theresa succeeded, and as a result the forfeiture rule developed a new application which can prevent a killer from administering the deceased's estate.
These cases underline the fact that the forfeiture rule is a necessary tool in inheritance law, even if it does lead to contradictions in the judgments of civil and criminal judges when faced with differing standards of proof.
Relief from forfeiture
Sometimes, the application of the forfeiture rule is deemed by the Court to be unfair. In those circumstances the Court has a power to modify or exclude the effect of the rule, and allow the person affected to inherit the deceased's estate notwithstanding the part they played in the death.
The outcome of these exceptional cases is often surprising. For example, the case of Challen v Challen [2020] EWHC 1330 (Ch)concerned a married couple called Georgina and Richard. They had been married for 40 years, but Richard was understood to have been repeatedly unfaithful and abusive to Georgina until one day she killed him by a blow to the head, while he was eating a meal that she had prepared for him. Georgina was convicted of diminished responsibility manslaughter, rather than murder, on the grounds that she was suffering from an abnormal psychiatric state that prevented her from controlling her behaviour at the time of her husband's death. Despite Georgina's conviction, the civil judge decided to disapply the forfeiture rule and allow her to inherit Richard's estate. The judge noted that his death would not have happened if he had not behaved appallingly to Georgina over so many years. This demonstrates the scope of a judge's discretion to apply or exclude the rule in the particular facts of each case, considering what is fair in the circumstances.
Judicial discretion in assisted dying cases
Another context in which civil judges are likely to grant relief from forfeiture is that of assisted dying. Under the Suicide Act 1961, helping someone to end their life is a criminal act. It follows that, if the Forfeiture Act 1982 is read strictly, someone who helps another to end their life cannot benefit from their death.
However, several cases have shown that judges may be minded to disapply the forfeiture rule in this context. Morris v Morris [2024] EWHC 2554 (Ch) is the most recent of these, in which a man took administrative steps to arrange his wife's travel to Switzerland so that she could end her life. She had an incurable degenerative condition. The judge considered whether her husband would forfeit his inheritance of his late wife's estate and ruled that the forfeiture rule would not apply in this instance despite his involvement in her death. It was clear that he had not encouraged her to end her life, and in fact had sought to dissuade her. The judge also found it significant that the Crown Prosecution Service (CPS) had decided that there was no crime to investigate in this instance, despite the criminality of helping someone to end their life under the Suicide Act 1961.
In the same case, the judge considered whether the deceased's children and sister would forfeit their inheritances, since they had been present at the time of her death. It was held that the forfeiture rule would not apply to them, since they had only been there as a comfort for the deceased and had not done anything to encourage or enable her decision. The family were therefore also allowed to inherit from the deceased's estate.
This case echoes others from recent years. In Re Ninian (Deceased) [2019] EWHC 297 (Ch), an 80-year-old man was diagnosed with a degenerative condition and decided to use the Dignitas service in Switzerland to end his life. He began to arrange this without his wife's knowledge, and when she found out his intentions, she sought to dissuade him. He was resolute, however, and she agreed to help him to provide the correct documentation to the clinic and travel there, since he could no longer speak or travel without help. The judge decided that the forfeiture rule could be disapplied, so that the deceased's wife could inherit his estate, including jointly owned property which was allowed to pass to her by survivorship. As in Morris v Morris, the judge took into consideration the fact that she had not encouraged the deceased's actions, and that the CPS had decided that it was not in the public interest to prosecute.
These cases demonstrate that the civil court will often err on the side of sympathy with those who have helped someone to end their life, granting them relief from forfeiture so long as they did not encourage the deceased's decision. This is in spite of the fact that such an action is currently a criminal offence, andalso in spite of the clear wording of the Forfeiture Act 1982 on this issue. It could be inferred that the judiciary would be in favour of a legislative change around assisted dying to bring it in line with the judgments they have already handed down.
Is Parliament catching up?
It seems that such a change may be on the horizon, with the Terminally Ill Adults (End of Life) Bill ("the Bill") currently making its way through Parliament. The Bill was introduced to the House of Commons on 16 October 2024 and is currently at the Committee stage, which will involve a detailed review of its implications. We have previously written about the implications of the Bill here.
The Bill proposes that assisted dying should only be lawful where the person in question is aged 18 or over, is terminally ill (with no more than six months left to live), and has capacity to make the decision to end their own life. The Bill also proposes that the following conditions (among others) should be met for assisted dying to be lawful:
- The person has been resident in England or Wales for at least one year;
- The person has a voluntary, clear, settled and informed wish to end their own life;
- The person has made two declarations confirming their wish;
- Two independent qualified medical practitioners have separately assessed the person and discussed their wish with them; and
- A High Court judge has made a declaration that all of the legislative requirements are made out for the assisted dying to be lawful.
MPs have proposed that an expert panel, rather than a High Court judge, should scrutinise steps taken under the Act. There has been some debate about whether this alternative procedure would strengthen or weaken the safeguards offered to those seeking to end their life. Concerns have also been raised about whether the Bill adequately addresses the issue of coercive control, which can arise if someone is persuaded by their loved ones or other third parties to engage in the assisted dying process. The final outcome of these discussions remains to be seen.
The impact of the Bill on forfeiture law has not yet been confirmed, and was not discussed when the Bill was debated in the House of Commons, but it is still possible to anticipate what this will be. The Bill's current draft form includes a provision that "[a] person is not guilty of an offence by virtue of providing assistance to a person in accordance with this Act". The draft Bill also proposes an amendment to the Suicide Act 1961 which would mean that someone assisting in the death of another in accordance with the Bill would no longer be guilty of an offence under that Act. It follows that someone who helps another person end their life would no longer have participated in an unlawful killing, and so the forfeiture rule would not be engaged; however, the Bill proposes that this will only be the case if its other provisions are adhered to.
The terms of the Bill will almost certainly be varied as they are considered in detail by Parliament. If the Bill becomes law, it will represent a momentous shift not only in the context of criminal law and the forfeiture rule, but also within the wider ethical framework of society regarding terminal illnesses and end-of-life care.
If you would like to discuss the contents of this article further, please do not hesitate to contact a member of the Private Wealth Disputes team. We understand that assisted dying, and the forfeiture rule more generally, are topics which arise in unique and deeply personal contexts.
Upcoming event: 'Story of a Murder'
Emily Bueno, a Managing Associate in the Private Wealth Disputes team, will be interviewing Hallie Rubenhold on 12 March 2025 about the upcoming publication of her book, 'Story of a Murder'. Hallie is the best-selling author of 'The Five: The Women Killed by Jack the Ripper', and her latest book will re-examine the story of Dr Crippen and explore how he was brought to justice by an extraordinary group of women. If you are interested in learning more about the background of this seminal case in the development of the forfeiture rule, we invite you to book your place at this talk to attend either in-person at Mishcon de Reya's London office or online. Click here for more information.