Right to Die vs Forfeiture rule

Posted by Sarah Sharpin

28-08-2018

“The forfeiture rule states that a person who has unlawfully killed another cannot benefit from the victim’s estate.”[1] This also applies to an individual who has unlawfully killed or aided, abetted, counselled or procured the death of another person from benefiting in consequence of the killing. At first thought this seems right. It appeals to our common sense of justice that a criminal should not be able to benefit from their crime.

If we take the facts of Macmillan Cancer Support v Hayes & Another [2017] further however, that sense of justice wobbles. Say, for example, your partner had a terminal illness and wanted to end their life before their illness became too advanced, but they relied on you for day to day tasks and were therefore not capable of ending their life themselves. If you were to assist them with their wishes, you would be assisting a suicide and could receive up to 14 years imprisonment. This would also impact your ability to inherit under your partner’s will. The question is whether or not that feels fair.

As seen in Macmillan Cancer Support v Hayes & Another [2017] and Dunbar v Plant [1998] (“Dunbar”) the courts can use section 2 of the Forfeiture Act 1982 to use its discretion and consider all the circumstances of the case to modify the rule. In Dunbar, the court concluded that in the circumstances of a half-successful suicide pact the survivor, where only one person survived, should be relieved from forfeiture. It concluded that the public interest would not normally call for forfeiture where the beneficiary has aided and abetted a suicide.

How the offence is classified is of huge importance for the forfeiture rule. The rule cannot be modified for convictions of murder, however it can be for convictions of manslaughter. A loving partner who consensually smothered a terminally ill spouse could be charged with murder, manslaughter or assisted suicide, yet there is also the potential reluctance of a jury to find someone guilty of something when they are morally mitigated. Morality and firm held beliefs could alter the legal concepts like intention to come to a more ‘acceptable’ outcome. Outcomes like this can be seen in Dunbar.

The right to die movement is contentious. On the one hand it seems natural and right that people with terminal illnesses’ want to have control over when and how they die. On the other hand it is all too easy to see how the system that allows for this might be abused. Life, whether at the beginning or the end, has always been treated as precious and worth fighting over. The Assisted Dying for the Terminally Ill Bill 2005/6 attempted to marry the two sides of the argument and it was, ultimately, unsuccessful.

As the right to die movement becomes more vocal, the promise of the return of The Assisted Dying for the Terminally Ill Bill 2005/6 remains and, with the courts making more discretionary decisions like that in Dunbar and Macmillan Cancer Support v Hayes & Another [2017], maybe it is time to give thought to whether those assisting their loved ones should have a more formal provision for them when it comes to inheritance.


Sarah Sharpin

Trainee Solicitor
Family Law
Dispute Resolution

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