Relief against forefiture

It is a principle of public policy that the law should not allow offenders to benefit from their own crime; the forfeiture rule derives from the common law precedent that a person criminally responsible for another’s death cannot benefit from their estate.

The recent case of Macmillan Cancer Support v Hayes [2017] EWHC 3110 (Ch) highlights the Court’s power to vary the application of this rule in certain circumstances.

In this case, Macmillan Cancer Support brought proceedings against Mr Hayes and Mr Long in their capacity as Executors of the estate of Sheila Thompson and Peter Thompson in an attempt to receive charitable donations under both of the wills.

Mr and Mrs Thompson were by all accounts a loving and devoted lifelong married couple without children. On the 19th April 2015 Mr Thompson was found hanged in the hallway of the home he previously shared with Mrs Thompson. On his body was a note explaining that his wife Mrs Thompson passed away at approximately 20:10pm on the 18th April 2015. A note was found with Mrs Thompson’s body addressed to the Coroner explaining that Mr and Mrs Thompson had discussed ending their lives once their ‘normal lives’ were over.

Mrs Thompson was 84 years old and suffering from advanced dementia and was facing seeing out the remainder of her days in a nursing home. Mr Thompson was 88 and had been diagnosed with various health issues.

The Coroner explained that evidence indicated Mr Thompson had sedated his wife before suffocating her, following which Mr Thompson hanged himself. As Mrs Thompson suffered from severe dementia, the Coroner ruled she was unable to consent to taking her own life and recorded a verdict of unlawful killing. Mr Thompson died by his own hand after Mrs Thompson’s death.

Mr and Mrs Thompson’s wills were examined and under clause 3 of Mrs Thompson’s will her entire estate passed to Mr Thompson provided ‘he was proved to have survived her’. Clause 4 of Mrs Thompson’s will stated that if Mr Thompson shall not be proved to have survived her then several legacies to charities and friends took effect. Mr Thompson had a mirror will with identical legacies to charities and friends.

Had Mr Thompson not unlawfully killed Mrs Thompson, clause 3 would have taken effect and he would have inherited her entire estate.

However, owing to the rule of forfeiture Mr Thompson ‘forfeited’ his benefit under Mrs Thompson’s estate. Because of this forfeiture Mrs Thompson was deemed to have died partially intestate. Without close family, distant relatives in Australia stood to inherit. Clause 4 of Mrs Thompson’s Will was disregarded as the wording of this clause was such that it only took effect if Mr Thompson did not survive her.

Macmillan Cancer Support appealed for relief against this forfeiture under section 2 of the Forfeiture Act so that Mr Thompson could be deemed to still inherit and therefore Mrs Thompson’s beneficiaries, including Macmillan Cancer Support, could benefit from her estate by virtue of their interest under Mr Thompson’s Will. The Thompson’s estates were worth approximately £600,000 each.

The Court had to consider the conduct of Mr Thompson, the conduct of Mrs Thompson and other material circumstances. Taking into account a range of circumstances including the lack of moral culpability, the couple’s loving relationship, the absence of children, the fact Mr Thompson did not benefit from his wife’s death, and that there were no moral claims from those who would have benefited had the forfeiture rule been applied, the Court sided with Macmillan Cancer Support. In coming to this decision, the Court also followed guidance from previous cases where suicide pacts where involved.

Mr Thompson was deemed to inherit Mrs Thompson’s estate and therefore their joint estates were distributed under Mr Thompson’s Will to the charitable beneficiaries as well as Mr and Mrs Thompson’s friends as opposed to distant relatives in Australia.

What does this mean for practitioners? One hopes not to encounter such sad circumstances, but we now have case law to turn to for an example of the Court exercising its discretion pursuant to section 2 of the Forfeiture Act 1982. Should such circumstances arise again we need to evaluate the likely success of such an appeal for relief against forfeiture.