Can someone who unlawfully kills another person benefit from the victim’s estate? Jill Rushton of Stephensons Solicitors LLP explains the forfeiture rule.

What is the forfeiture rule?

The forfeiture rule is a law which prevents a convicted person from benefitting from their crime in any way.

So, for example, if someone unlawfully kills another person, they would not then not be able to benefit in any way from the death of their victim. Should they have been a beneficiary of the victim’s estate (money, property and possessions), either through the will or the rules of intestacy (when someone dies without a will), then they will not be able to benefit. This means that they would forfeit any inheritance they had previously been entitled to.

This law has been established mainly to prevent convicted murderers from being able to inherit from their victim's estate, and the rule is clear in how it is applied in such situations, regardless of the circumstances surrounding the murder and subsequent conviction.

Can the forfeiture rule be waived by the court?

But the question for the courts is: “Does a murder conviction always prevent the murderer from benefitting from the estate of their victim?” According to public policy and the forfeiture rule they should be prevented from benefitting. However, Section 2 of the Forfeiture Act 1982 gives the courts the power to modify the rule as long as the court 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 in that case.”

Henderson v Wilcox and others [2015]

In the case of Henderson v Wilcox and others [2015] EWHC 3469 (Ch) the court used its power to modify the rule. In 2014 Mr Ian Henderson was convicted of the manslaughter of his mother who had left her entire estate to Mr Henderson in her will, and in default to her nephew. The estate therefore passed to the nephew in accordance with the forfeiture rule as it is deemed by the law that Mr Henderson passed away before his mother, therefore triggering the default provision in the will.

Mr Henderson made an application to the court to modify the rule and allow him to benefit from the estate, as it had been agreed during his conviction that it had been Mr Henderson’s mental health issues that had contributed to his mother’s manslaughter and he had not intended to kill her. The court refused this application as it believed that regardless of Mr Henderson’s mental health issues he had capacity to know right from wrong.

How does the forfeiture rule affect jointly owned property?

The position is no different in relation to jointly owned property where the property is owned as joint tenants. Where one co-owner murders the other then they will not then own the property outright, regardless of the rules on survivorship which usually apply to property owned as joint tenants.

In the Henderson case there was no jointly owned property, but Mr Henderson had become the beneficiary of a Family Protection Trust that his mother had set up during her lifetime. The court considered this also as he had a beneficial entitlement from her estate. Mr Henderson again applied to the court as he believed that the forfeiture rule did not affect his beneficial interest in the property, and if it did, he asked the court to consider modifying the effect of the forfeiture rule using Section 2 of the Forfeiture Act 1982.

The court did not consider this necessary, however, as the property was already beneficially Mr Henderson’s prior to the death of his mother. As such, the forfeiture rule had no effect. Mr Henderson did not benefit from this as a direct result of the death of his mother in which he had a hand.

Is the forfeiture rule effective?

What the Henderson case shows is that the court will modify the forfeiture rule but this is at their absolute discretion. The rule appears to be simple in relation to a murder conviction, but the courts will more readily consider the modification in relation to a conviction of manslaughter as the Forfeiture Act 1982 contains a relief to modify the forfeiture rule where the conviction was not for murder. 

All the circumstances of the individual case must be considered, as the court must be satisfied that it would be unfair or unjust to deprive the perpetrator of a benefit from the estate.

About the author

Jill Rushton is a Wills and Probate Partner at Stephensons Solicitors LLP. The firm act on a range of contentious probate issues, including inheritance disputes.

See also

Disputing a will - the practical considerations

What is a partial intestacy and how does it occur?

Disputing a will using fraudulent calumny

Find out more

Forfeiture Act 1982 (Legislation)

Image: Getty Images

Publication date: 20 July 2020

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.