Sunir Watts and Sophia Smout discuss the forfeiture rule and assisted suicide in eprivateclient
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Sunir and Sophia’s article was published in eprivateclient, 10 April 2024, and can be found here.
The forfeiture rule and its application in cases of assisted suicide
The October 2023 case of Trust Corp Ltd v Goodman’s Estate [2023] EWHC 2780 (Ch) has drawn attention once again to the forfeiture rule and its application in cases of assisted suicide.
The ‘forfeiture rule’ (s1 Forfeiture Act 1982), which was first established in the 1892 case of Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, is a legal principle designed to prevent a person who has unlawfully killed another from profiting from the death. It acts to eliminate any benefit which that person might otherwise have obtained as a result of the death (through an insurance policy, for example, or an inheritance under a Will, intestacy or the survivorship rule).
Whilst the forfeiture rule has welcome application in murder cases, it also has lesser-known, and often unintended, application in cases of assisted suicide, due to the criminalised status of euthanasia under English law.
In other words, if a person assists another in ending their life, usually due to terminal illness, then the assisting party will “forfeit” to anything they might otherwise have inherited from the deceased. Case law has shown that ‘assisting’ may include arranging travel to an assisted suicide clinic, accompanying the person on the trip or procuring the medication required to end the person’s life.
In Goodman’s Estate, which turned on particularly tragic facts, a husband helped his terminally ill wife to end her life in the UK, after Covid-19 travel restrictions prevented her from travelling to Dignitas in Switzerland. The husband, who was the sole beneficiary of his wife’s estate, then wrote his own will leaving his entire estate to charity before taking his own life.
The court modified the forfeiture rule to allow the husband’s gift to charity to include the amount he had inherited from his wife’s estate, as the forfeiture rule would otherwise have prevented him from inheriting from her.
The Goodman case serves as a timely reminder of the key principles relating to the assisted suicide v forfeiture ‘trap’.
Firstly, it must be remembered that helping a loved one to take their own life carries criminal implications in the UK – even where, as is so often the case, the act is done to carry out a loved one’s final wishes.
The police should be informed (ideally, as noted in Goodman, as soon as possible) and the Criminal Prosecution Service (CPS) will usually be required to investigate, even where the death took place outside the UK. In the majority of cases, the CPS will conclude that prosecution is not in the public interest; but early disclosure, full cooperation with any investigation and the right legal support can all help to mitigate the stress of the process.
Secondly, where the assisting party was a beneficiary of the deceased’s estate and the forfeiture rule applies, it may be necessary to apply to the court for ‘relief from forfeiture’, the claim which succeeded in Goodman. This is an application to the civil court under s2 Forfeiture Act 1982, which asks the judge to modify or exclude the forfeiture rule in the circumstances and allow the beneficiary to keep their inheritance. The court has discretion to do this where it is in the interests of justice, and the decision will be based on the specific facts of each case.
In Goodman, the relevant factors were the extremely low culpability of the husband (a prosecution would have been highly unlikely had he survived, given clear evidence of his reluctance to assist), and surviving evidence of the wife’s ‘voluntary, clear, settled and informed decision to die’.
Applications for relief from forfeiture can be costly, and the outcomes are far from certain, especially where those who would lose out if relief were granted are minors or vulnerable persons. For those who have been asked to assist with a loved one’s death, therefore, or are considering assisted suicide, some practical steps to bear in mind are as follows:
- Consider taking legal advice – both civil and criminal – at an early stage of planning, to understand the implications for those who assist;
- Consider asking someone who is not likely to inherit from the deceased to assist (as this will reduce or eliminate the civil consequences of the death, if not the criminal consequences);
- If the only possible assistant is also a beneficiary, then ensure there is a frank discussion about the likelihood of forfeiting the inheritance, and consider how the costs of a relief application might be met;
- If you are considering assisted suicide, consider leaving evidence (such as a letter or video) explaining your decision;
- Maintain an open dialogue with criminal and civil legal advisors, the police and the CPS both before and after the death.
The loss of a loved one through assisted suicide can be a fraught and extremely difficult time. Following the above steps and seeking early help and support can help to mitigate the legal implications as far as possible.
