Thou shalt not kill... nor inherit if you do12 Jun 2020 // Insights
John Melville-Smith examines the ancient forfeiture rule, which prevents those who kill from benefiting from their crimes.
Those who kill in order to inherit under a Will or intestacy face the real prospect that, in addition to being accommodated by HM Prison Service for a lengthy period, the inheritance to which they might otherwise have looked forward had they permitted nature to take its course will not be waiting for them when they emerge, bleary-eyed, into the cold light of freedom.
This is because of the ancient, common law ‘forfeiture rule’, which states that a person who has unlawfully killed another is precluded from acquiring a benefit. Dr Hawley Crippen, Jeremy Bamber and many others did not inherit under the Wills of those they were convicted of killing.
However, there need not be a murder and the benefit need not be testamentary, a point illustrated in the 1971 leading case of Gray v Barr. Mr Barr entered Mr Gray’s house armed with a shotgun, believing (rightly) that he and Mrs Barr were conducting an adulterous affair but (wrongly) that they were in flagrante delicto at that precise moment. In true cinematic style, they met on the staircase, and a tussle ensued, with inevitable consequences. Mr Barr was acquitted both of murder and, surprisingly, manslaughter but Mrs Gray sued him. Mr Barr had an insurance policy covering damages awarded for legal liability in respect of bodily injury caused by "accidents". Rather cheekily, he argued that, as he had been acquitted, the event had indeed been an accident and the policy was thus engaged. The insurance company, High Court, and Court of Appeal, all disagreed: Lord Denning, making it clear that what had occurred was manslaughter whatever the jury had decided, upheld the first instance decision that any such claim under the policy was barred by public policy:
"The logical test, in my judgment, is whether the person seeking the indemnity was guilty of deliberate, intentional and unlawful violence, or threats of violence. If he was, and death resulted therefrom, then, however unintended the final death of the victim may have been, the court should not entertain the claim for indemnity."
The starting point is therefore the common law rule encapsulated in these words. From then, one moves to the Forfeiture Act 1982 which provides that, where a court determines that the forfeiture rule has precluded a person who has unlawfully killed another from acquiring any interest in property, the court may modify the rule.
To do this, the court must be satisfied that, having regard to the conduct of the offender and of the deceased and to any other material circumstances, the justice of the case requires the effect of the rule to be so modified. The court is not empowered to modify the rule in the case of a person convicted of murder.
Two recent, 2020, cases have illustrated how the rule can be modified.
In Challen v Challen, a case which has attracted much publicity in the non-legal press, Mrs Challen made lunch for her husband and, as he ate it, she struck him on the back of the head repeatedly with a hammer which she had brought with her in her bag, killing him. This was the culmination of a 40-year relationship and marriage, which had produced two children, in which the deceased was serially unfaithful, visited prostitutes, was contemptuous, belittling, aggressive and violent to Mrs Challen. When she threatened divorce, he responded that he would limit access to their children. He ignored her complaints about his behaviour or subjected her to gaslighting. Mrs Challen was driven to seek medical help for severe stress, started to drink excessively, commenced divorce proceedings, then relented. The couple was discussing the possibility of moving to Australia to live and start afresh when she discovered his latest affair, and finally snapped.
Initially, Mrs Challen was convicted of murder, which would have prevented the application of the Forfeiture Act and the court’s discretion under it. On appeal, her murder conviction was quashed and her subsequent plea of guilty to manslaughter by reason of diminished responsibility was accepted, thus bringing it into play.
The second case, Amos v Mancini, was tragic. Mr and Mrs Amos, an elderly couple, were on their way to the funeral of Mr Amos’s sister, a long drive, with Mrs Amos at the wheel They became lost and decided to turn back. It was raining and getting dark. Their car collided at high speed with the back of a line of stationary vehicles. Mr Amos died from his injuries and Mrs Amos was convicted of causing death by careless driving and sentenced to prison, naturally suspended.
The two cases are very different. The forfeiture rule clearly applied in Challen – Mrs Challen had killed her husband deliberately, all the circumstances notwithstanding - but in Mrs Amos’s case, the sentencing Judge had said: “It is a tragedy for you as much as anyone else. As a result of what happened that night you have lost your beloved partner of 30 years. Your loss is a devastating one and I have no doubt whatsoever that that is a significant punishment in itself, far exceeding anything that this Court could or would consider passing.”
The civil court decided that there was no logical distinction between applying the rule to all cases of manslaughter (as it is) but not to a case of causing death by careless driving. The rule thus applied, the appropriate course being to consider exercising the powers under the 1982 Act.
Thus, in very different circumstances, the courts reached the same point.
Unsurprisingly, in Amos, the Judge found that it would be unjust to deprive Mrs Amos of her husband's share in their home or of his estate under his Will. Both would be out of proportion to her culpability, and justice required the modification of the rule so as to allow her to inherit.
Challen was a more difficult decision, but the Judge reached the same conclusion:
“I am quite satisfied on the evidence that the claimant loved the deceased very much and could not contemplate the thought of losing him. And yet she killed him, as Oscar Wilde says in The Ballad of Reading Gaol. The exercise of my discretion under the 1982 Act is not about whether there was criminal responsibility for the killing … it is about whether the justice of the case requires that the forfeiture rule relating to the inheritance of property be disapplied.
These facts are extraordinary, tragic, and, one would hope, rare. They lasted 40 years and involved the combination of a submissive personality on whom coercive control worked, a man prepared to use that coercive control, a lack of friends or other sources of assistance, an enormous dependency upon him by the claimant, and significant psychiatric illness. The deceased undoubtedly contributed significantly to the circumstances in which he died … without his appalling behaviour over so many years, the claimant would not have killed him.”
Should you have any questions regarding the above, or need any contentious probate related legal advice, please contact John Melville-Smith, at firstname.lastname@example.org, or 020 7725 8027.
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