It is perhaps not surprising that the law prevents and who has unlawfully killed another from acquiring any benefit in their estate whether pursuant to the terms of the testator’s will or, if there is no will, under the intestacy rules. The preclusion extends to a person who has unlawfully aided, abetted, counselled or procured the death of another. However, the court has power to modify the effect of the law in exceptional circumstances and where justice of the case requires the rule to be modified. In this article, I look at the relevant law and provide some examples of recent cases where an application has been made to court to modify the effect of the law.
Section 1 of the Forfeiture Act 1982 (“the Act”) provides:
“(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.”
Section 2 provides:
“(1) Where a court determines that the forfeiture rule has precluded a person (in this section referred to as “the offender”) 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 [or excluding] the effect of that rule.
(2) The court shall not make an order under this section modifying [or excluding] 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 [or excluded] in that case.
Time limits for bringing a claim
Section 2 of the Act goes on to provide that:
(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 [or excluding] 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 [relevant period].
[(3A) In subsection (3) above, the “relevant period” is the period of six months beginning with-
(a) the end of the period allowed for bringing an appeal against the conviction, or
(b) if such an appeal is brought, the conclusion of proceedings on the appeal.]
Time limits in practice
Calculating the relevant statutory time periods can some times be confusing as the case of Challen and Challen and another .
In this case, Sally Challen was convicted of the murder of her husband, Richard in 2012. She was sentenced to life imprisonment. In February 2019, the court of appeal quashed her conviction and remitted it for a retrial on the basis that the trial court had not properly considered her case on diminished responsibility, arising in part from the fact that Sally had for many years been the victim of her husband’s coercive control and that had been a relevant factor in her behaviour.
On 5 April 2019 she tendered a plead of not guilty to murder but guilty to manslaughter by reason of her diminished responsibility. On 29 May 2019, the Crown indicated the plea was acceptable and on 7 June 2019 Sally was sentenced to nine years imprisonment, in effect the time she had already served.
As a result of the forfeiture rule, Richard’s estate had passed to their sons. On 6 September 2019, Sally made an application for relief from forfeiture so that she would be entitled to the estate.
Before hearing the merits of her claim, the court first had to decide whether the time bar prevented Sally from making the application. Her application would only be in time (by one day) if time ran from 7 June 2019, the date when she had been sentenced to manslaughter.
Judge Matthews concluded that time would not run from the date of her unsuccessful conviction against her murder conviction but rather the date of her subsequent manslaughter conviction. In this respect, he concluded that as it required the court to accept the guilty plea that had been tendered, rather than the Crown alone, it had not when the Crown has first indicated that the plea was acceptable but rather on 7 June 2019, the day the court formally accepted the plea.
Accordingly, he concluded that Sally’s claim was in time and the court then went on to consider the merits of the claim.
Applying the modification or exemption of the forfeiture rule in practice
In the Challen case, as the estate had passed to the children it had been subject to a very substantial inheritance tax charge. Sally applied for relief from forfeiture so that she would be entitled to the estate and would take it free of inheritance tax. Her sons was defendants to the application but did not oppose the same. HMRC had been notified of the application but did not respond thereto.
The Judge held that in these circumstances the interests of justice would be served by a full exclusion of the forfeiture rule. The forfeiture rule was not a punitive rule but a rule of public policy. The court was required to take all relevant considerations into account and that was a broad enquiry. It considered Sally’s personal responsibility for Richard’s death and considered that her diminished responsibility and Richard’s coercive control substantially reduced that blameworthiness and that Richard was to a significant degree responsible for the event. He made it clear that the circumstances of the case were extreme and unusual, and that it should not be taken as indicating the court’s approach to any unlawful killing arising as a reaction to coercive control – plainly any such application would be highly fact specific.
A similar outcome was found in the more recent case of Leslie Winnister. Leslie was married to Suzanne. Their marriage began to fail in 2019 and the COVID lockdown restrictions in 2020 exacerbated this yet further. Leslie’s mental health deteriorated. This led to him suffering from severe depression with psychotic features. After seeing a text message that Suzanne had sent to the couple’s handyman signed off with a “x” he believed his wife was having an affair. This developed into the mistaken belief that his wife and the handyman were trying to poison him via his food and drink and even the air. Ultimately, his paranoia and delusions led to him killing Suzanne on 8 September 2020.
Leslie was sentenced to an indefinite hospital order after admitting he was guilty of manslaughter by diminished responsibility. Subsequently, he made an application for exclusion of the forfeiture rule.
The High Court considered that his case was exceptional with his level of guilt being low, his offending being entirely as a result of his mental disorder. Accordingly, the court made an order that Leslie should inherit a minimum of £200,000.00 from Suzanne’s estate which had been valued in the region of £2.5 million.
Conversely, however, in the case of Henderson V Wilcox & Others  the court refused Mr Henderson’s application. In 2014 Ian Henderson was convicted of the manslaughter of his mother who had left her entire estate to Ian and, in default her nephew.
In view of the forfeiture rule, the estate had passed to the nephew and so Ian brought an application to modify the rule and allow him to benefit from the estate on the basis that it had been his mental health issues that had contributed to his mother’s manslaughter and that he had not intended to kill her.
The court refused the application was it considered that regardless of his mental health issues, Ian had the capacity to know right from wrong.
Does the Act apply to other “unlawful killing” convictions?
In the recent case of Amos V Mancini & Others  the court held that the Act applies to death by careless driving. The Judge stated that he did not consider there to be any logical distinction between death by careless driving and other cases of manslaughter including those which involve little more than inadvertence.
Mrs Amos killed her husband following a car crash where she was driving. She had momentarily lost concentration on a long journey after many hours of driving, at night and in the rain which had led to a four car smash. She had pleaded guilty at the first available opportunity to death by careless driving and was given a suspended sentence.
Mrs Amos was the sole beneficiary of her husband’s estate under the terms of his will. The Judge allowed her application and granted her full relief on the basis of her early plea, the level of her culpability, the lack of defence to her application and the long and happy marriage to which both parties had contributed financially. Allowing the forfeiture rule to apply would be out of proportion to her culpability in the offence.
Get out of jail card!
Notwithstanding the provisions of the Act, Section 3 makes it clear that the offender remains free to bring a claim for financial relief under the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”). This is the case even if it was the forfeiture rule and not the terms of the will itself that resulted in no provision having been made for the offender. The 1975 Act may therefore give the offender a “get out of jail” card and a way of securing financial benefit from the deceased’s estate regardless of the unlawful killing. As with any other claim under the 1975 Act, however, each case will turn on its own individual facts and the ability to bring a claim may not necessarily mean that such a claim will be successful.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.