The Forfeiture Rule, Assisted Dying and Mercy Killings

Under section 1 of the Forfeiture Act [1982], anyone who unlawfully kills another person is precluded from acquiring a benefit as a consequence of that killing.  This means that anyone who unlawfully kills another person cannot benefit from their victim’s estate under a Will or intestacy.  

The term “unlawful killing” is not limited to the criminal definitions of murder.  Unlawful killing can also include anyone who has unlawfully aided, abetted, counselled, or otherwise procured the death of that person.  This means that an individual who has assisted someone in committing suicide or who has performed a “mercy killing” cannot benefit from the deceased’s estate.

Although the rule was introduced as a matter of public policy in order to prevent killers from benefitting from their crime, it can have unintended consequences for those who assist their loved ones with dying.  

Every eight days someone from Britain travels to Dignitas to die.  Thousands more attempt to take their own lives as a result of a terminal diagnosis or illness, and an estimated 350 - 600 are successful.  Despite some people ending their lives unaided, many require the help of their loved ones.    

Section 2 of the Act contains a discretionary power for the courts to set aside the forfeiture rule if they believe that the application of the rule conflicts with a just result.  As with all discretionary powers, however, they cannot be relied upon and they are often applied inconsistently.   

In the case of Withers Trust Corporation Limited v The Estate of Hannah Goodman [2023], the executors for the estate of Adrian Berry sought full relief from the forfeiture rule.  

Hannah Goodman (Adrian’s wife) was diagnosed with lung cancer in 2017, and by April 2020 her diagnosis was terminal.  The Covid pandemic made a journey to Dignitas impossible.  On the 13th of July 2020, Hannah received her only visit from her GP, where she was given a large supply of morphine to manage her pain.

Hannah passed away on the 14th of July 2020 at home.  Although her cause of death was recorded as lung cancer, Adrian later admitted in his suicide note that he had ended Hannah’s life.  Adrian died of carbon monoxide poisoning in 2022.   

Under Hannah’s Will, Adrian inherited her estate in the first instance, with the residue otherwise passing to a charitable trust.  Under Adrian’s Will, the Armiger Foundation inherited his estate.  If the forfeiture rule applied, then Adrian’s share in Hannah’s estate would be payable to Hannah’s charitable trust and not Adrian.

After examination of the facts, the Judge  ruled that it would be unjust to apply the forfeiture rule due to Adrian’s low moral culpability.  The court referred to the considerations made in Dunbar v Plant [1998] and Ninian v Findlay and Others [2019] when deciding whether or not to waive the application of the forfeiture rule.

The judgment in this case provided a valuable precedent in relation to the implications of participating in a mercy killing or assisted dying in the administration of an estate.