When Can the Forfeiture Rule be Modified?

In accordance with public policy and the forfeiture rule, a person who unlawfully kills another should be precluded from acquiring a benefit in consequence of the killing.  Section 2 of the Forfeiture Act 1982, however, gives the Court the power to modify the 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'.

In the recent case of Henderson v Wilcox and others [2015] EWHC 3469 (Ch), the Court used its discretion to consider the application of the forfeiture rule and its power to modify the rule.

The Henderson Family

In 2014, Ian Henderson was convicted of the manslaughter of his mother, Mrs Henderson.  In her Will, Mrs Henderson left her entire estate valued at £150,000 to Ian, and in default, to her nephew.

The money therefore passed to Mrs Henderson's nephew in accordance with the forfeiture rule, whereby the killer is deemed to have died before the person who made the will to prevent the killer benefiting from his crime.

The Court did consider an application by Ian to modify the rule and allow him to inherit his mother's estate, as the Court agreed that Ian had mental health issues and had not intended to kill his mother.  However, the application was refused on the basis that Ian had the mental capacity to appreciate the difference between right and wrong.

Joint Property Held in Trust

However, Mrs Henderson's estate did not include joint property, owned by Mrs Henderson and Ian, as they had settled their respective shares in Family Protection Trusts prior to Mrs Henderson's death.  Ian therefore asserted that the forfeiture rule did not affect his interest in the property, as it was already held in trust at the time of his mother's death.  Ian again asked the Court to consider modifying the effect of the rule using their powers in section 2 of the Forfeiture Act 1982.

The High Court held that the forfeiture rule did not affect Ian's interest in the trust, as he had not acquired the interest as 'a consequence of the killing'.  The trust was already in existence at the time of his mother's death.

Although not an everyday occurrence, this is an important reminder for practitioners that the Court will not readily modify the rule but will consider cases on an individual basis.

Michelle Rose who leads our Contentious Trusts and Probate Practice is happy to share her practical experience of how the Probate Registry has dealt with the operation of the forfeiture rule. She can be contacted on 0117 314 5246.