The Forfeiture Rule: recent cases Mathew Roper 24 th July 2020 - - PowerPoint PPT Presentation
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;
24th July 2020
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Mathew Roper
“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
at the very idea that any other doctrine could be possible in our system of jurisprudence.”
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"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."
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“Mr Jackson submits that the forfeiture rule does not apply to every case of
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
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.”
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“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.”
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“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.”.
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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.
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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
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)
(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. […]
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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
(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. […]
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.
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with Progressive Supra-nuclear Palsy
Dignitas
administrative assistance to Mr Ninian in his application to Dignitas
suicide in Switzerland
“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…”
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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.
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.
this type without a hearing due the benefit that is obtained from oral submissions from counsel.
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.
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causing Mr Amos multiple injuries from which he later died.
careless driving under section 2B of the Road Traffic Act 1988.
clean character, Mrs Amos was sentenced to 32 weeks’ imprisonment suspended for 12 months and disqualified from driving for 12 months.
“It does not appear that causing death by dangerous driving, although this is unlawful killing, has attracted forfeiture…”
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“It is probable - although not certain - that the forfeiture rule does not apply to other cases of unlawful killing; for example, to cases where there is a conviction for causing death by dangerous driving.” And in a footnote to this paragraph: “There appear to be no reported cases where it has been suggested that the rule applies to causing death by dangerous driving. Section 20 of the Road Safety Act 2006, which came into force in 2008, created an additional offence of “causing death by careless or inconsiderate driving”. It is virtually certain that the forfeiture rule does not apply to someone convicted of this new offence.”
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I cannot see a logical distinction in applying the rule to all cases
inadvertence) but not to a case of causing death by careless
manslaughter involves causing the death of someone by criminal conduct applies with equal force in my judgment to an offence of causing death by careless driving. Where in such a case the application of the rule is not just, then the appropriate course is to exercise the powers under the 1982 Act. Accordingly, I conclude that the rule does apply in this case.
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He was also contemptuous, belittling and aggressive or violent.
with the deceased on condition that she enter into a post-nuptial agreement.
Challen discovered that the deceased remained unfaithful and proceeded to strike him on the back of the head repeatedly with a hammer until he died.
quashed by the CA in 2019. She subsequently pleaded guilty to manslaughter by reason of diminished responsibility.
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guilty to manslaughter by reason of diminished responsibility.
manslaughter.
claimant was sentenced to imprisonment.
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“A significant consequence of granting the relief sought in this claim would be a reduction in inheritance tax paid by the estate
December 2019 I directed that HMRC be contacted to see if they wished to take part in the hearing. The invitation was duly transmitted, but there has been no response to this invitation.”
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Mathew Roper