Forfeiture Rule Disapplied in Assisted Dying Case

In certain circumstances, a person who has unlawfully killed another is precluded from benefiting as a consequence of their death, a rule known as the forfeiture rule and defined in Section 1(1) of the Forfeiture Act 1982. However, Section 2 of the Act gives the courts powers to modify the effect of the forfeiture rule. Recently, the High Court considered whether it should be disapplied in the case of a husband who had assisted his wife to end her life.

The wife had been diagnosed with a degenerative neurological disorder and, as her condition deteriorated, became determined to end her life at an assisted dying clinic in Switzerland. Her husband managed to overcome his initial opposition in order to respect her wishes. He helped her to make the arrangements and accompanied her to the clinic. It was accepted that he had carried out actions capable of assisting his wife's suicide with an intention to do so under Section 2(1) of the Suicide Act 1961.

He later applied to the Court to disapply the forfeiture rule in respect of his interest in his wife's estate. The Court considered a witness statement the wife had prepared stating that she had a settled wish to travel to Switzerland for an assisted death. The solicitor who had prepared the wife's statement said that she and the wife were alone when she took instructions, and she had no suspicions that any undue influence or encouragement had been exerted. The Court found that, given the wife's determination to proceed and the husband's reluctant willingness to assist, nothing he had done could be characterised as encouragement.

The Court noted that it was established by precedent that where a prosecution under the 1961 Act is not in the public interest, strong grounds for disapplying the forfeiture rule are likely to exist. The husband had reported his role in his wife's death to the police, who had plainly taken the view that there were no grounds for further investigation. All of the evidence pointed to the husband being wholly motivated by compassion. The Court considered that the public interest factors against prosecution were clearly made out.

The husband was financially comfortable and disapplying the forfeiture rule would have no material effect on his standard of living. His application was supported by members of his family who stood to benefit if the forfeiture rule were applied. The Court observed that relief was being sought because all concerned considered it wrong for the wife's wishes regarding her estate to be ignored. The Court had no doubt that this was a case where the application of the forfeiture rule should be excluded in full.