In this article we consider how the forfeiture rule applies to the administration of an estate in cases where the deceased has been unlawfully killed.
This is not an area of probate law that is often considered, but it is an interesting topic and one which we are asked to advise upon from time to time. Let us start by looking at what forfeiture is and when it applies.
In a nutshell; crime should not pay. The framework of the forfeiture principle is such that if a person unlawfully kills or contributes to the death of a person from who they were due to inherit, then the offender will be prevented from receiving any inheritance they would otherwise have received.
Forfeiture was first considered in the case of Cleaver v Mutual Reserve Fund Life Association way back in 1892, when the Court ruled that a person who unlawfully kills another is not entitled to receive any property as a result of the victim’s death.
The Forfeiture Act 1982 now defines the forfeiture rule at section 1(1) as:
“…the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit of the killing.”
There are no half measures with this piece of legislation. If the circumstances are such that the forfeiture rule applies, then the provisions of the Act will apply absolutely.
That being said, the Forfeiture Act 1982 does give the court discretion to relieve the effect of forfeiture. The statutory test for this is set out in section 2(2) of the Act:
“(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.”
This is a discretionary power for the court, and if a wrongdoer wishes to bring a claim for relief there is a time limit of three months from the conviction date. It should also be noted that relief from the forfeiture rule under this section is not applicable where a person is found guilty of murder.
What about the children of the convicted wrongdoer? Could they inherit in the place of their parent? Historically forfeiture often had the effect in practice of disinheriting the children of the wrongdoer. The law in this respect was changed by the Estates of the Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011 so that if the death to which the forfeiture rule applies occurred after 1 February 2012 the wrongdoer will be deemed in law to have predeceased the deceased. This means that in some cases their children would be entitled to take the inheritance.
If you are involved in a forfeiture dispute or need to know more about this area then contact our free legal helpline. We offer free case assessments and can often work under a No Win, No Fee agreement.