Honouring last wishes: The High Court on waiving the Forfeiture Rule

The Forfeiture Rule is a long-established principle of English law that prevents a person from benefiting from their own wrongdoing – particularly in the context of homicide, but also where someone has unlawfully caused the death of another. The rule applies irrespective of motive, even where the act was carried out with compassion and with the deceased’s consent. If engaged, the rule prevents a person from inheriting from the deceased’s estate, whether under a will or via the statutory rules of intestacy where the deceased has no will.

In England and Wales, suicide itself has ceased to be a criminal offence for almost 65 years with the coming into force of the Suicide Act 1961, but assisting another person to end their life remains a criminal offence under section 2 of that Act.

Dunbar v Plant [1997] is a leading authority on this issue, where the Court of Appeal confirmed that aiding, abetting, counselling, or procuring suicide engages the forfeiture rule. While the court exercised discretion to limit the rule’s effect in that case, it reaffirmed that the rule is automatically triggered when the elements of the offence are met.

The recent case of Peace builds on this foundation, offering a practical framework for situations where the forfeiture rule might otherwise apply. It demonstrates how beneficiaries can agree among themselves to respect the deceased’s wishes, even in the sensitive context of assisted dying.

The Peace case

Facts

In the case of Peace, the testator, David Peace, travelled to Switzerland to end his life at Dignitas, a non-profit Swiss organisation that facilitates assisted suicide for individuals meeting specific criteria. David was accompanied by a close friend, the first defendant, who had been left a flat in David’s will. Because this friend had assisted David’s journey, the forfeiture rule could potentially have prevented them from inheriting, despite the deceased’s clear intentions.

No application for relief under section 2 of the Forfeiture Act 1982 was made to the court. However, two other friends of the deceased, who would have inherited the flat if the forfeiture rule applied, agreed that the estate should be distributed in line with David’s wishes. They formally requested that the executor transfer the flat to the first defendant.

Concerned about whether he could rely on this agreement, the executor sought clarification from the court.

Decision

The Court held that the agreement between the beneficiaries was valid and enforceable, effectively setting aside the forfeiture rule. Even though no formal application for relief had been made, there was no public policy reason to override a private arrangement reached in good faith by the beneficiaries of the will.

Key takeaways

This decision offers a pragmatic and compassionate solution, allowing families to honour the wishes of the deceased without costly litigation, provided all beneficiaries are in agreement.

However, the case also highlights a potential limitation. The court’s willingness to uphold the beneficiaries’ agreement bears resemblance to the principle in Saunders v Vautier [1841] EWHC J82, where all beneficiaries of a trust, if of full age and capacity, may agree to vary its terms. But this principle is only effective where there is unanimous consent. In the context of the forfeiture rule, this means that even if one beneficiary dissents – for example, a residuary beneficiary such as a charity with a financial interest in the outcome – the agreement may fail and the forfeiture rule would apply.

Accordingly, while Peace provides a welcome route for honouring last wishes in straightforward cases, it is unlikely to be the final word. The courts may soon be asked to revisit the issue where consensus among beneficiaries cannot be reached, especially in more complex or contentious estates.

Nonetheless, it will be interesting to see whether this approach gains wider adoption and influences the ongoing debate over the forfeiture rule, particularly in the context of euthanasia. One could perhaps even imagine a future where the rule is applied only when the person assisting acts with selfish or malicious motives, reflecting the approach in Switzerland.

If you have any questions in relation to the issues raised above, please contact Justin Briggs or the author, Simon Lellouche. This update was written with the assistance of Nick Lee.