Murder Most Foul

 In Probate

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Forfeiture Rule & The Law of Succession Act 2011

Murder and its consequences is a topic that usually fascinates the press (witness the Amanda Knox story). Yet this is one story that has so far missed even the legal press. Perhaps it is the title, or its dry content, but so far little attention has been paid to “The Forfeiture Rule and The Law of Succession Act 2011”, which received Royal Assent on the 12th July 2011.

The Act will, when implemented, introduce some small, but important changes, to the rules on the consequences of a murder (or manslaughter) as well as where a right under a Will or intestacy is disclaimed.

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Background

The Act arises out of Re DWS (deceased) [2001] Ch 568. In that case a son killed both his parents. They died intestate and he was the sole intestate beneficiary. The forfeiture rule prevented him inheriting. He had a son who ought (surely) to have been the next in line. However, the Court of Appeal held that he failed to qualify because he did not meet the requirement, on the strict terms of the intestacy legislation, that his father (the murderer) be dead. The result was that a sister of the deceased inherited instead.

Problems to address

The outcome in Re DWS is problematic for a number of reasons:

  • Most obviously, the result in that case is not the right one – few would disagree that innocent children should inherit their father’s share over a more distant relative.
  • It is not known what would happen if the murderer had had siblings. What would have happened to his putative share in the estate, would it have been divided between his siblings or passed bona vacantia?
  • Significantly for private client practitioners, the rule is the same if, instead of forfeiture, an individual gives up a right by disclaimer. There is a trap for the unwary in assuming (for either Wills or an intestacy) that a disclaimer will lead to the next generation taking, particularly if the class is dependent upon the disclaiming individual’s death etc (see the example below). In some cases a partial intestacy can be caused inadvertently.

In Re DWS an appeal was made to the European Court of Human Rights but then compromised with the UK Government. In July 2003 the Government asked the Law Commission to “review the relationship between the forfeiture rule and the law of succession”. This led to a Law Commission Report (Law Com No 295) and a draft bill. The Bill finally received Royal Assent on the 12th July 2011.

Effect

The Act will, when brought into force, have the following effects:

  • Where there is an intestacy and an individual is prevented from entitlement by either forfeiture or a disclaimer, they will be treated as if they had died before the deceased, which will have the effect of accelerating the interests of their children (because they will be treated as having died with issue).
  • Similarly, where there is a Will, unless the Will provides to the contrary, a person whose interest is forfeited or disclaimed will be treated as having pre-deceased the testator. That will thereby accelerate any interests and may also have the effect of closing the relevant class.
    So if there is a gift to A for life thereafter to such of B, C and D as are alive at A’s death the effect of a forfeiture or disclaimer will be that B, C and D will take. Previously, the income may have passed under the residue or a partial intestacy (depending upon the wording used) because it was undisposed of. Moreover, because the interest of B, C and D was dependent upon out living A they would have needed to wait for A’s death before acquiring a vested interest.
  • There is also a provision for cases where a beneficiary of an intestate dies before reaching 18 but with a child. Now their child will be entitled to their share.

Not Yet

The Act requires a statutory instrument to come into force, which cannot provide that the Act come into force before 12th October 2011. When it does it will take effect for all deaths (or murders!) taking effect thereafter.

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