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Forfeiture rule excluded in tragic case of assisted suicide

In this new regular feature, we will examine key cases in relation to will writing and other estate planning activities to keep you up to date on recent developments in the law. All cases covered will be recent, relevant, and widely reported. For this second instalment we’ll look at Ninian v Findlay and Others [2019] EWHC (Ch).

The facts

Ninian v Findlay is a particularly tragic case, involving a wife who assisted her ailing husband with ending his own life. Mr Ninian suffered from a progressive and fatal disease with no chance of recovery. In 2017 he took the decision to arrange to end his life via a euthanasia clinic in Switzerland, Dignitas. By the time he had made this decision his disease has progressed far enough that he could not travel alone so he required his wife’s assistance.

Before making the trip Mr and Mrs Ninian both sought independent legal advice. This was helpful for Mrs Ninian later on as her husband’s solicitors had prepared a statement confirming that she had been opposed to Mr Ninian’s decision and had only helped him travel to Switzerland out of compassion for him.

When Mrs Ninian returned to the UK she instructed her solicitors to report what she had done to the police. Assisting a suicide is a criminal offence in the UK under section 2 of the Suicide Act 1961, and the Crown Prosecution Service had sufficient evidence to charge her. They opted not to do so citing that it was not in the public interest to prosecute her.

The issue then became one of whether Mrs Ninian was entitled to benefit from her husband’s estate? Mr Ninian’s estate was valued at £1.8m and his will named his wife as his sole beneficiary.

The law

The Forfeiture Act 1982 provides that if a person unlawfully kills another, they are then barred from inheriting from the victim’s estate via their Will or intestacy. The beneficiary would be treated as having predeceased the testator and the estate distributing accordingly.

This rule applies to cases of murder, manslaughter and other types of unlawful killing. It also extends to a person who aided or abetted the unlawful killing, as was the case here with Mrs Ninian.

The Forfeiture Act 1982 gives the courts a power to modify the rule upon application by the person who has committed the unlawful killing.  In deciding whether to modify the rule the courts will consider all relevant circumstances, as well as the conduct of the deceased and of the offender (as the person responsible for the unlawful killing is referred to in the Act). In this case Mrs Ninian made an application to have the rule excluded in her case.

Decision

The courts considered that Mrs Ninian had been motivated wholly by compassion and not by money.  She has also attempted to dissuade her husband from travelling to Dignitas and had assisted him reluctantly. They also considered her conduct on returning to the UK, specifically how she had reported herself and proceeded to fully cooperate with the police investigation. The fact that the CPS had opted not to press charges against her was also an important factor in her favour.

The courts allowed her application and modified the rule, allowing Mrs Ninian to inherit the whole of her husband’s estate.

The full judgement can be read here: https://www.bailii.org/ew/cases/EWHC/Ch/2019/297.html