It is not unlawful to commit suicide, but it is a serious offence to encourage or assist the suicide or attempted suicide of another, with a maximum penalty of 14 years imprisonment. The ‘forfeiture rule’ is the rule of public policy which, in certain circumstances, and in relation to the Suicide Act 1961, precludes someone who has unlawfully killed another from acquiring a benefit in consequence of the killing. Laura Abbott, an associate at Wright Hassall, considers the impact of the forfeiture rule in relation to the recent Ninian v Findlay case.

Forfeiture and assisted suicide: The implications of the decision in Ninian v Findlay & Ors [2019] EWCH (297) Ch

The ethical debate surrounding assisted suicide is long standing, complicated and emotive, never far from the headlines.  A lesser considered, but connected issue is the impact of the forfeiture rule. 

Legal Context

S1(1) of the Forfeiture Act 1982 prevents anyone who has ‘unlawfully killed another from acquiring a benefit in consequence of the killing’ – ie receiving an inheritance from their estate, and S1(2) extends that to precluding anyone who has ‘unlawfully aided, abetted, counselled or procured the death, from acquiring the benefit in consequence of the killing’.

The case of Dunbar v Plant [1998] Ch 412, is the existing legal authority which held that the forfeiture rule applies to assisted suicide cases by virtue of S1(2).

Background

Mr Ninian was described as a successful businessman, intelligent, decisive and fiercely independent. In 2013, Mr Ninian was diagnosed with Progressive Supra-nuclear Palsy (‘PSP’), when he was in his 80s. PSP is an incurable disease which causes difficulty with balance, movement, visions, speech and swallowing. 

By 2017, Mr Ninian had arranged to end his life through an assisted suicide clinic in Switzerland. Mrs Ninian (who had been married to Mr Ninian for over 30 years) was initially against Mr Ninian’s intention to attend the assisted suicide clinic and actively discouraged the decision. However, she ultimately decided to respect her husband’s wishes and assisted him in making the arrangements for – and travelled with him to – Switzerland, although she did not provide an assistance to the actual life ending procedure.

Mr Ninian was deemed to have the requisite mental capacity to make decisions about his condition and treatment options, and he was also deemed to have testamentary capacity. As part of this, both Mr and Mrs Ninian had sought independent legal advice in respect of Mr Ninian’s decision.

On her return to the UK, Mrs Ninian reported the matter to the police and fully assisted them with their enquiries into the circumstances of the suicide. She was at significant risk of being prosecuted under the Suicide Act 1961; however, upon review, the Crown Prosecution Service decided that although there was sufficient evidence to prosecute Mrs Ninian, it would not be in the public interest to do so; it was a compassionate rather than malicious act – this distinction is a helpful differentiation.

The Case

Mrs Ninian made an application under section 2 of the Forfeiture Act 1982 to have the forfeiture rule excluded in this case and allow her to inherit her husband’s estate.

Section 2 enables the court to make an order to either modify or exclude the rule where it is satisfied ‘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 …’.

The Court decided that, even though Mrs Ninian did not specifically carry out an act which assisted Mr Ninian’s suicide, she had assisted with the administration and travel to the clinic, such that, without her involvement, Mr Ninian would not have been able to attend the clinic. It was held that an offence had been committed and the forfeiture rule did apply.

However, the Court went on to consider whether it should apply its available discretion and modify or exclude the rule and its effect under section 2. The Court considered various factors, including that:

• the police had decided not to prosecute Mrs Ninian
• the couple had been married for 34 years and the evidence suggested a strong and loving relationship
• Mrs Ninian took steps to positively discourage the decision and any help she did provide was removed from the immediate actions to cause his death
• Mr Ninian had a strong independent will and retained capacity
• Mr Ninian had clearly recorded his intentions, and
• independent legal advice had been obtained

It was further noted that, if the forfeiture rule applied, Mrs Ninian’s brothers would inherit the estate instead, and they were, in fact, both in support of her application.

After considering all of these factors, the Court held that there was a compelling case to exercise discretion and relief was granted.

Implications

It is likely, given the issue in hand, that this decision is going to be viewed controversially. In the context of the forfeiture rule, it is an interesting and arguably welcome development to this area of law. The population of the UK is ageing and there continue to be advances in medical treatment that can prolong life, so it is likely to become more and more relevant. 

The forfeiture rule certainly does still have a place in order to safeguard individuals and ensure that there is no financial incentive for suicide. Each case will turn on its own facts, of course, but the judge in this case went so far as to say that ‘on one view, although not of course an action the court can endorse, she did what many persons would do for a loved one’.

The judgement from the case highlights the detailed approach taken by the Court in determining whether, or not, relief from the forfeiture rule should be granted. The steps taken by the couple and the varying factors considered, clearly demonstrate that neither the decision itself, nor the resulting Court conclusion, should be or are made lightly.

About the author

Laura Abbott is an associate in the contentious probate team at Wright Hassall, and is a member of the Society of Trust and Estate Practitioners (STEP).

Image: Getty Images

See also

Deceased estates: protecting against liability

How can a disappointed beneficiary challenge a will?

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