The Forfeiture Rule and the Law of Succession (Consultation Paper) [2003] EWLC 172(1) (30 September 2003)

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The Law Commission

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URL: http://www.bailii.org/ew/other/EWLC/2003/172(1).html
Cite as: [2003] EWLC 172(1)

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PART I

INTRODUCTION

In July 2003 the Department of Constitutional Affairs requested the Law Commission to review the relationship between the forfeiture rule and the law of succession. The terms of reference were as follows.

(1) In conjunction with its work on "illegal transactions",^[1] the Law Commission is asked to review the relationship between the forfeiture and intestacy rules.

(2) The review should be carried out with reference to the difficulties highlighted in the case of Re DWS (dec'd)^[2] and should explore ways the law might be reformed to prevent apparently unfair outcomes of this sort.

(3) The review should also consider any ancillary areas of succession law that might produce analogous outcomes, for example disclaimer and attesting beneficiaries.

Accordingly, this Consultation Paper sets out the Law Commission's provisional views and invites consultees' comments. The paper will set out the nature (Part II) and scope (Part III) of the problem encountered in Re DWS (dec'd). It will also briefly consider comparative approaches (Part IV) and the relevant policy arguments (Part V) and, finally, suggest some possible solutions (Part VI). Our provisional proposals and the questions for consultation are set out in brief in Part VII.

The problem

1.3

Briefly, the problem concerns the case where a person is disqualified from claiming an inheritance because he or she has killed the deceased. In this situation, it appears that an unintentional effect of the intestacy rules, as laid down in the Administration of Estates Act 1925, is to exclude all the killer's descendants from the succession. Thus, where a son or daughter has killed a parent, the grandchildren are excluded in favour of collaterals: that is, the deceased's brothers, sisters, uncles, aunts and their descendants.

^[3]

The conclusion of this Consultation Paper is that the grandchildren should be allowed to inherit. One reason is that they should not be punished for the sins of their parent; another is that this is more likely to be what the deceased would have wished; a third is that the general policy of intestacy law is to prefer issue to collaterals so that to make an exception in the forfeiture case is inconsistent.

Analogous situations

1.5

1.6

The situation may arise under a will which leaves a legacy to A or, if A should predecease the testator, to B. If A kills the testator, B will not meet the conditions set by the will, and the legacy will fall into residue or intestacy. Analogous facts could arise under a settlement containing a gift conditional on surviving a tenant for life. The main difference between these situations and the intestacy situation is that B need not be related to A.

1.7

The main reason for disqualification other than forfeiture is disclaimer. This may occur either under a will or on intestacy. If the child or principal beneficiary disclaims the benefit, the effect will be that the grandchild or substitute beneficiary is also excluded, as their interest is conditional on the child or principal beneficiary dying before the deceased. The same thing may happen in will cases where the principal beneficiary is disqualified by having witnessed the will.

Provisional proposals

1.8

In the principal situation discussed, of the son or daughter whose interest under an intestacy is forfeited because he or she has killed the deceased, we consider that the grandchildren should be allowed to inherit. This would best be effected by a new statutory provision that, in this situation, the estate should be distributed as if the person losing the entitlement had died immediately before the deceased. The alternative possibility, that the Crown or the court should be allowed to rectify the situation through a discretionary power, is undesirable.

1.9

The Law Commission's main provisional proposal concerns the case where:

(a) the dead person has died intestate, and the potential heir is excluded because he or she has killed the dead person.

We propose a similar solution for the cases where:

(b) the dead person has died intestate, and the potential heir is excluded because he or she has disclaimed any interest in the estate; or

(c) the dead person has made a will, and the potential heir is excluded because he or she has killed the dead person.

For reasons explained below,^[4] we do not consider that this solution should extend to other cases, such as where:

(d) the dead person has made a will, and the potential heir is excluded because he or she disclaimed any interest in the estate;

(e) the dead person has made a will, and the potential heir is excluded because he or she is a witness to the will; or

(f) analogous circumstances exist in connection with a lifetime settlement.

The review process

The "forfeiture rule", as discussed in this paper, is a rule of law to the effect that a person cannot claim an interest under a will or intestacy if he or she has killed the testator or intestate person. It is an instance of a wider principle that a person should not be allowed to profit from his or her crime ("the no-profit principle"). The no-profit principle is considered in the Commission's project on illegal transactions, and it is for this reason that the present review of the forfeiture rule was allocated to that project. (The link between the present review and the project on illegal transactions is largely administrative: the present review will have its separate timetable, consultation process and conclusions.)

1.11

One possibility being considered by the Commission as part of its work on illegal transactions is that the no-profit principle should remain in existence, but in the form of a discretion to be exercised in accordance with statutory guidelines rather than of a strict exclusionary rule.

^[5]

^[6]

^[7]

This Consultation Paper will be sent to a representative sample of judges, academics and practitioners interested in the law of wills and intestacy, and to selected interest groups and professional organisations. The date set for comments to reach us is 23 January 2004. Depending on the nature of the response, it is hoped to publish a Report, possibly containing a draft Bill, by the end of 2004.

1.13

The scope of this paper is restricted to England and Wales. It is thought that similar problems may arise in the laws of Scotland

^[8]

^[9]

PART II

FORFEITURE AND THE LAW OF INTESTACY

The forfeiture rule

It is a well-established principle of public policy that a person who has been criminally responsible for the death of another cannot take by succession on the death.

^[10]

^[11]

^[12]

The rule clearly applies where the successor is guilty of the murder

The rule is mitigated by the Forfeiture Act 1982, which provides relief from forfeiture of inheritance for persons guilty of unlawful killing.

^[18]

^[19]

^[20]

The exercise of this power is discretionary. Section 2(2) of the Act provides that:

The court shall not make an order under this section… unless it 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…

However, by virtue of section 5, the court has no power to modify the effect of the forfeiture rule where the successor has been convicted of murder.

The problem considered here

2.5

This paper addresses a particular problem exemplified by the Court of Appeal's decision in Re DWS (dec'd),

^[21]

Re DWS (dec'd)

The intestacy provisions

The relevant provisions of the Administration of Estates Act 1925 are as follows, with divisions and emphases to allow for easier reading. The sections from which these are taken are set out at greater length and in the traditional layout in the Appendix to this Consultation Paper.

46. Succession to real and personal estate on intestacy.

(1) The residuary estate of an intestate shall be distributed in the manner or be held on the trusts mentioned in this section, namely:--

[…]

(ii) If the intestate leaves issue but no husband or wife,

the residuary estate of the intestate shall be held on the statutory trusts for the issue of the intestate;

[…]

(v) If the intestate leaves no husband or wife and no issue and no parent,

then the residuary estate of the intestate shall be held in trust for the following persons living at the death of the intestate, and in the following order and manner, namely:--

First, on the statutory trusts for the brothers and sisters of the whole blood of the intestate;

[…]

(vi) In default of any person taking an absolute interest under the foregoing provisions,

the residuary estate of the intestate shall belong to the Crown

or to the Duchy of Lancaster or to the Duke of Cornwall for the time being, as the case may be,

as bona vacantia, and in lieu of any right to escheat.

The Crown or the said Duchy or the said Duke may

[…]

out of the whole or any part of the property devolving on them respectively,

provide, in accordance with the existing practice, for

dependants, whether kindred or not, of the intestate, and

other persons for whom the intestate might reasonably have been expected to make provision.

47 Statutory trusts in favour of issue and other classes of relatives of intestate

(1) Where under this Part of this Act the residuary estate of an intestate, or any part thereof, is directed to be held on the statutory trusts for the issue of the intestate,

the same shall be held upon the following trusts, namely:--

(i) In trust, in equal shares if more than one,

for all or any the children or child of the intestate,

living at the death of the intestate,

who attain the age of eighteen years or marry under that age,

and for all or any of the issue

living at the death of the intestate

who attain the age of eighteen years or marry under that age

of any child of the intestate who predeceases the intestate,

such issue to take through all degrees, according to their stocks, in equal shares if more than one, the share which their parent would have taken if living at the death of the intestate,

and so that no issue shall take whose parent is living at the death of the intestate and so capable of taking;

[...]

(2) If the trusts in favour of the issue of the intestate fail by reason of no child or other issue attaining an absolutely vested interest--

(a) the residuary estate of the intestate

and the income thereof and all statutory accumulations, if any, of the income thereof, or so much thereof as may not have been paid or applied under any power affecting the same,

shall go, devolve and be held under the provisions of this Part of this Act

as if the intestate had died without leaving issue living at the death of the intestate;

(b) references in this Part of this Act to the intestate "leaving no issue" shall be construed as "leaving no issue who attain an absolutely vested interest";

(c) references in this Part of this Act to the intestate "leaving issue" or "leaving a child or other issue" shall be construed as "leaving issue who attain an absolutely vested interest."

[…]

The decision in Re DWS (dec'd)

Facts

2.7

In Re DWS (dec'd) R murdered his parents, both of whom died intestate.

^[22]

^[23]

That contention was challenged by the executors of W, the grandfather's sister. According to them, section 47(1)(i) had to be construed literally. The statutory trust for issue was either for a child or for remoter descendants whose parents had died before the deceased. T fell into neither category.

2.9

The second question was: assuming that T could not take, what should be the ultimate destination of the estate? In particular, could W's executors inherit? W's executors relied primarily on section 47(2)(a) of the Administration of Estates Act 1925. As no child or other issue of the deceased had attained an absolutely vested interest, the statutory trust for issue failed and the estate devolved as if the intestate had died without leaving issue living at his death. Accordingly section 46(1)(v) of the Administration of Estates Act 1925 applied and the estate should go in the first instance to "the brothers and sisters of the whole blood of the intestate". In response, T contended that section 47(2) of the Administration of Estates Act applied only if the child had failed to obtain an absolute vested interest because he did not attain the age of 18 or marry.

The decision

2.10

Blackburne J, at first instance, held for W's executors on both points.

^[24]

All three judges agreed that T could not inherit. With regard to the ultimate destination of the property, the majority (Aldous and Simon Brown LJJ) held that the estate passed to W's executors under the combined effect of section 46(1)(v) and section 47(2)(a) of the Administration of Estates Act 1925. The words of the latter were not qualified or restricted to particular events which would prevent the child attaining an absolute vested interest, and the subsection was wide enough to cover the instant case. R had not attained an interest for the reasons set out above. Accordingly, the estate should be held as if the grandfather had died without leaving any issue.

2.12

Sedley LJ dissented on the latter point. For him, the literal wording of section 46(1)(v) of the Administration of Estates Act 1925

^[25]

bona vacantia,

^[26]

Further consequences

The decision turns on the definition of the "statutory trusts" for issue in section 47(1) of the Administration of Estates Act 1925. Under section 47(3) of that Act, the same definition is applied with the necessary changes to the statutory trusts for siblings, aunts and uncles.

^[27]

Re DWS (dec'd)

Why the current law was felt to be unsatisfactory

The result in Re DWS (dec'd) seems to us to be unsatisfactory for three principal reasons, which are examined in detail in Part IV below:

^[28]

(a) it is unjust to penalise the grandson for the crime of his parent;

(b) the result contradicts the policy of the intestacy legislation;

(c) the result contradicts the likely wishes of the deceased.

The ECHR case

There may also be an ECHR dimension to the decision in Re DWS (dec'd).

^[29]

There are three ways in which an ECHR claim might be framed. First, T might seek to invoke his right to property under Article 1 of the First Protocol ECHR (the right to property) which provides that:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or the contributions or penalties.

T would need to argue that a claim under the intestacy provisions is a type of property within the meaning of the Protocol.^[30] The Protocol provides that States may not effect a de iure or de facto deprivation of a person's property unless it is in the public interest. However, in defining that public interest it is well established that the national authorities have a wide margin of appreciation in implementing social and economic policies. Their judgment will be respected unless it is "manifestly without reasonable foundation".^[31] In the present case, it might be difficult for T to demonstrate that the UK has exceeded its margin of appreciation. It could also be argued that T has been deprived of no more than a mere hope of succeeding: if the murder had not taken place he would have had no vested right to ensure that the property should devolve from the deceased to R and from R to himself.^[32]

Secondly, T might frame his claim as a breach of Article 8 ECHR which provides that:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

T might seek to argue that by arbitrarily diverting his grandparents' estate away from him the English legal system has imposed a regime calculated to disrupt the natural ties of kinship protected by Article 8. The intestacy rules are here conceived as concerning status and placing value on certain relationships rather than as a purely financial scheme. It is not clear whether T would succeed in this claim. It is questionable whether the intestacy rules can be accurately conceived in this way and whether these are interests which Article 8 protects.^[33]

Thirdly, T might seek to argue that there has been a breach of Article 14 ECHR taken with Article 1 of the First Protocol ECHR (the right to property) or Article 8. Article 14 provides that:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The list of prohibited grounds is not exhaustive and "other status" has been extensively interpreted. T might argue that the present law discriminates against him in an arbitrary and unjust way. This is because the decision that he should not inherit was based on the fact that his father survived his grandparents, while his father's survival was no bar to the claim of W (the collaterals). The difference in treatment had no objective or reasonable justification and penalised a wholly innocent grandchild. Nor did it have a legitimate aim since it arose as the result of legislative oversight and the arbitrary operation of the forfeiture rule. On the other hand, even if the provisions of the Administration of Estates Act 1925 are manifestly discriminatory it does not follow that they discriminate in relation to Convention rights. It would be necessary first to bring his claim to succession within the ambit of either Article 8 or Article 1 of the First Protocol: that is, the applicant need not demonstrate that there has been a breach of those Articles, merely that the applicant has been discriminated against with regard to the exercise of rights under them. Of the three potential claims this would seem to have the best (though still far from certain) chance of success.

PART III

DOES THE PROBLEM APPLY MORE WIDELY?

3.1

The result in Re DWS (dec'd)

^[34]

Re DWS

(dec'd)

Disclaimer on intestacy

The first situation which may raise a similar problem is that which occurs when a person entitled pursuant to the intestacy rules disclaims the entitlement (disclaimer is refusal to accept an interest). It seems that it is possible to disclaim an entitlement under an intestacy. This was the assumption in Re Scott (dec'd)

^[35]

^[36]

^[37]

Re DWS (dec'd)

Wills with substitutionary gifts

A problem may also occur when the deceased has made a will stipulating a substitutionary gift. In such a situation the testator provides by will that A shall take but if A shall predecease the testator then B shall take. The problem considered in this paper may arise in more than one guise. If A kills the testator (forfeiture), or A disclaims the gift (disclaimer), B will not take in A's stead because the condition (that A predecease the testator) has not been met.

^[38]

There is a third instance where a problem may occur where a will has been made which is peculiar to wills. This arises because of the rule that an attesting witness shall not take a benefit under a will. Under section 15 of the Wills Act 1837 any such disposition is "utterly null and void". If, therefore, the testator provides that A shall take but if A shall predecease the testator then B shall take – and A attests the will and loses the gift – B cannot take as the condition (predecease) has not been met.

^[39]

The purposes of the rule disqualifying a witness from receiving a benefit are to avoid fraud or undue influence on the deceased by the witness and to make sure that at least two genuinely independent observers are present when the will is signed. It replaced an earlier rule of evidence to the effect that, where a witness was interested under a will, the whole will was void unless the witness disclaimed his or her benefit.

^[40]

The consequences of the gift's failure in the case of a will with a substitutionary gift may be different from those of the failure of statutory trusts where the deceased has not made any will. In the case of a will it is clear that, as with intestacy, B cannot take under the original substitutionary gift. However, the property may be subject to a "residuary" clause in the will or the will may even provide for the eventuality of A's disclaimer or forfeiture.

The problem does not exist in the same form where B's interest is successive rather than substitutionary. For example, if the will gave property to A for life with remainder to B, and A killed the testator or disclaimed the gift, B would succeed to the property under the doctrine of acceleration. There might however be a situation where both interests are in remainder but one is in substitution for the other. For example, the will could give property to L for life, with remainder to A, but in case A does not survive L, to B. In this case, if A disclaims the gift, or kills either the testator or L, B does not fulfil the condition and the property falls into residue or intestacy.

3.8

The same situation could occur in the case of a lifetime settlement, with the likely effect that the property will revert to the settlor under a resulting trust. Similarly, a will or settlement may provide for B to take in place of A if A dies before some specified time or event, which need not be the death of a person.

Other areas

3.9

Other situations where the deceased's gift fails, such as ademption, abatement and uncertainty, have no particular consequences for the problem discussed here and do not give rise to the same difficulties. (Ademption may occur where a gift's subject-matter has ceased to exist as part of the testator's property at his death. Abatement occurs where the funds available for payment of the pecuniary legatees are insufficient: in this case the pecuniary legacies are reduced rateably. Uncertainty means that it is impossible to ascertain the subject-matter of the gift.) "Lapse" (death of an intended beneficiary) is already dealt with by statute.

^[45]

Another area which has already been dealt with is the effect of divorce on a testamentary gift to the testator's spouse. Section 18(2) of the Administration of Justice Act 1982 inserted a new section 18A into the Wills Act 1837: the new section provided that where a testator is divorced subsequent to execution of the will, any gift to his former spouse should "lapse". This gave rise to the problem identified in Re Sinclair.

^[46]

^[47]

^[48]

Summary

In summary, it seems that there are several other areas where analogous difficulties to those identified in Re DWS (dec'd) arise.

3.12

As far as intestacy is concerned, it arises where a person entitled on intestacy disclaims the gift. Disclaimer in this case plays an equivalent role to that played by the forfeiture rule in Re DWS (dec'd) itself and the situations are directly analogous. Difficulties also arise in three situations where the deceased has made a will providing for a substitutionary gift: forfeiture, disclaimer and beneficiary attestation. Analogous difficulties could arise in the case of a lifetime settlement providing for a substitutionary gift in remainder.

PART VI

WHAT DO OTHER COUNTRIES DO?

4.1

The fact pattern in Re DWS (dec'd)

^[49]

^[50]

Re DWS

(dec'd)

France

The French Civil Code gives an exhaustive list of the situations (indignités) where a potential successor on intestacy may be disqualified from inheriting. Since 1st July 2002 the situations where the claimant is necessarily disqualified are limited to the cases where the claimant has been found guilty of the murder or attempted murder of the deceased, or has unintentionally caused the death by way of assault.

^[51]

^[52]

Until 1st July 2002, the Code provided that the children of an indigne were not excluded for the fault of their parent, but that this only applied when their claim to inheritance was direct and not by way of representation.

^[53]

^[54]

^[55]

Re DWS (dec'd)

From 1st July 2002, the Code provides that the children of an indigne are not excluded whether their claim is direct or by way of representation.

^[56]

indigne

^[57]

Re DWS (dec'd)

^[58]

Italy

In the Italian Civil Code there is a wide range of "indignities", including the case where the claimant has killed the decease.

^[59]

^[60]

Re DWS (dec'd)

United States

A well-developed analysis of the issue under discussion here is provided in the US literature.

^[61]

Restatement of Restitution

^[62]

Restatement of Restitution

Re DWS

(dec'd)

Where a person is murdered by his heir or next of kin, and dies intestate, the heir or next of kin holds the property thus acquired by him upon a constructive trust for the person or persons who would have been heirs or next of kin if he had predeceased the intestate.

Whilst there was no English case directly in point prior to Re DWS (dec'd), the topic is discussed both in Goff and Jones' Law of Restitution^[63] and in Oakley's Constructive Trusts.^[64]

(1) Goff and Jones described Scott's argument for a "deemed predecease" rule as persuasive and consistent with Cleaver v Mutual Reserve Fund Life Association,^[65] but did not address the constructive trust approach as a way of achieving it. They acknowledged that the "deemed predecease" rule might be inconsistent with the English statute, but expressed the view that Re DWS (dec'd) was a harsh decision and one which Parliament could not have anticipated.

(2) Oakley, writing before the decision in Re DWS (dec'd), states that:

The authorities generally state that the will or intestacy provisions are applied on the basis that the murderer is struck out. While this has been sufficient to dispose of the cases that have come before the courts, it has never been made clear whether the effect of being struck out is or is not equivalent to predeceasing the victim. However, commentators have generally taken the view that the rights of third parties should indeed be established on the basis that the criminal predeceased his victim. This question obviously awaits clarification by the courts.

Unlike Scott, he does not base the forfeiture rule as a whole on the constructive trust concept, but he does hold that if any of the property in question did in fact reach the hands of the killer (for example, as the survivor of a joint tenancy), a constructive trust would arise.

The "deemed predecease" rule appears to have been adopted as the solution in several US states. For example, in South Carolina, where it appears that the legislature had foreseen the very problem encountered in Re DWS (dec'd), the legislative solution was to provide specifically that in such a situation inheritance of the estate would jump a generation and go to the grandchild.

^[66]

Re Norton (dec'd

^[67]

Re DWS (dec'd)

Scotland

An analysis of the problem under consideration here has also been undertaken by the Scottish Law Commission in their 1990 Report on Succession Law

^[68]

The position in Scotland is that, as under the law of England and Wales, the common law precludes someone who has unlawfully killed another from inheriting under their estate. This was confirmed in the case of Smith, Petr

^[69]

^[70]

Smith

^[71]

The precise effect of the common law rule was uncertain until recently. The Scottish Law Commission, in its 1990 Report, conceived of the rule as having the effect of deeming the killer to have predeceased the deceased. This view was based on a reading of the English case of Re Callaway (see above) which made a reference to the killer being "struck out"

^[72]

Stair Memorial Encyclopedia

the rule to be applied is that the share which any person is precluded from taking must be distributed as if that person had died before the deceased.^[73]

The Commission noted in the Report the difficulties that the operation of the forfeiture rule (without the killer being deemed to predecease the deceased) could cause in an inheritance context. For one thing, it was recognised that it was unjust to penalise the issue because of the ancestor's crime (all those responding to the Report's consultative memorandum agreed

^[74]

An unlawful killer who incurs forfeiture should be treated for the purposes of succession to the deceased's estate and any destination of trust property as having predeceased the deceased. Any descendants of the unlawful killer should be entitled to make the same claims on the killer's presumed predecease by virtue of forfeiture as they could have made had the killer actually predeceased without having incurred the penalty of forfeiture.^[75]

However, these proposals have not been enacted and there appear to be no immediate plans to do so.

The effect of the common law rule of forfeiture on the killer's descendants was examined two years after the publication of the 1990 Report in the case of Hunter's Exrs, Petrs.

^[76]

^[77]

Despite the proposals of the Scottish Law Commission, the current law of Scotland therefore remains substantially the same as that of England and Wales in this respect. Similar difficulties will arise with relation to both the intestacy

^[78]

PART V

THE POLICY ARGUMENTS

We have noted above

^[79]

Re DWS (dec'd)

^[80]

Intestacy

Forfeiture

Arguments for allowing the grandchild or other contingent beneficiary to inherit

Visiting the sins of parents on their children

The effect of the decision is effectively to punish T (the grandson) for R's (the son's) crime.

^[81]

^[82]

Re DWS (dec'd)

This seems harsh on T and there do not seem to be any countervailing justifications for the result. There may be situations on different facts where T is not as completely innocent as he was in Re DWS (dec'd). Nevertheless, if T is to be either directly or de facto disqualified, this ought to be as the result of his own actions. The forfeiture rule governs the consequences for inheritance for someone who commits an illegal act. It seems harsh that T should be effectively disqualified even though he does not directly fall within that rule.

5.4

On the other hand it could be argued that it is not as if T were being deprived of a vested interest. The starting point of the "sins of the parents" argument is that T ought not to be worse off than if R had not been disqualified. For the comparison to work several assumptions are required: that the deceased, if allowed to survive, would not have willed the property away from R; that R would not have willed it away from T; and that neither the deceased nor R would have spent or divested themselves of the property. That is, the comparison depends on T's place among the heirs of R rather than among the heirs of the deceased. The contrary rule, allowing T to inherit in place of R, would benefit T more than if the forfeiture had not occurred, as T need not wait till the death of R.

5.5

In the end, the strength of this argument depends on the extent to which a law of intestacy ought to admit the principle of representation. That is, any law of intestacy may be expected to provide some sort of order of preference among the relatives of the deceased existing at the time. It is not so obvious that that order need coincide with the order of devolution among those relatives, assuming them to inherit successively. The real point is that, if one order does coincide with the other, it should do so consistently: which takes us to the next argument.

The result contradicts the policy of the legislation

5.6

Secondly, the result might be objected to on the ground that it contradicts the policy of the legislation (and hence Parliament's underlying intention). As Harman J said in Re Lockwood (dec'd), "the object of the two statutes [the 1925 Act and the Intestates Estates Act 1952] was to distribute the estate of the intestate among [the] next of kin, and not to prefer the more to the less remote."

^[83]

^[84]

The court's solution in Re DWS was to apply the words of the statute literally and produce a result which… is an irrational one because it means that one member of a category lower on the list [i.e. W, the sister of the intestate] takes in preference to one higher on the list [T, the intestate's grandson].

Against this, it might be argued that to state that Parliament's policy with regard to intestacy is to prefer issue to collaterals is to state the position too broadly. Rather, Parliament's policy, as evinced by sections 46 and 47 of the Administration of Estates Act 1925, is not to prefer the remoter issue of an intestate where the intestate's child has survived the intestate, and only to prefer remoter issue where they were alive at the intestate's death.

^[85]

The answer to this is that, whether or not the result was intended by Parliament, it is inconsistent in principle. There is room for argument whether, in the abstract, an intestacy regime ought (in the absence of eligible children) to prefer grandchildren to siblings or vice versa. Once however the choice is made, it should be consistently carried out regardless of the reason for the absence of eligible children. There is no real justification for preferring grandchildren to siblings where the son or daughter is dead, but siblings to grandchildren where the son or daughter is unable to take for some other reason.

The result contradicts the likely wishes of the deceased

5.9

It is generally correct to say that the present law of intestacy is designed to reflect the presumed intention of the intestate.

^[86]

^[87]

Re DWS

(dec'd)

^[88]

Re DWS

(dec'd)

There are several possible objections to this argument. The first might be to question whether the deceased's intentions are always the basis of the law. As some commentators have pointed out,

It might also be questioned whether the presumed intention of the deceased should always be the basis for the intestacy rules. In Working Paper No 108,

^[93]

The third objection might be to question how the deceased's intention is to be ascertained. Can the deceased's intentions really be assumed in this case? Law reform bodies in the past have undertaken surveys of public opinion

^[94]

^[95]

In response to these points, it is argued that whilst the deceased's intention may not underpin every provision in the intestacy rules, it remains the paramount justification for the intestacy rules.

^[96]

Re DWS

(dec'd)

Re DWS

(dec'd)

Once more, the fundamental argument is that from consistency. There may be room for argument whether the deceased would have preferred to benefit the grandchildren or the collaterals, but it is reasonably certain that they would not have intended to benefit the grandchildren in one set of circumstances and the collaterals in the other.

Arguments against allowing the contingent beneficiary to inherit

Open to the deceased to provide for consequences

5.15

One argument might be that it is, of course, open to parties to avoid the unfortunate consequences of the present law by making a will so as to avoid their estate being distributed under the intestacy rules. This might be taken as an argument for preserving the status quo.

5.16

We consider that it would be better for the law to be changed. There is no justification for the "default" position being an unsatisfactory one, and the law should not leave it to the parties to contract out of such an undesirable situation. This is particularly so when events such as forfeiture (and for that matter disclaimer) are rare and are unlikely to be anticipated by parties or their lawyers even if and when they do decide to make a will.

Rarity of forfeiture on intestacy

5.17

Forfeiture on account of the successor killing the deceased is likely to occur rarely. This might be taken as a reason for the law to be left as it is.

5.18

However, this does not seem to be a satisfactory reason. The cases are rare but they do occur.

^[97]

Indirect benefit to the offender

One argument against allowing grandchildren to inherit instead of collaterals is that they are more likely to be under the influence of the offender, and may even pass the money or property to him or her.

5.20

Another argument is that to allow the grandchildren to inherit may confer an indirect benefit on the offender, thus making the forfeiture ineffective as a deterrent. For example, if the grandchildren are still financially dependent on the offender at the time of the death, any inheritance from the deceased will remove from the offender a part of the burden of supporting them.

^[98]

One answer to this is that the forfeiture rule was never intended to cover indirect benefits of this kind. If the deceased had made a will directly benefiting the grandchildren, there would be no question of depriving them of this legacy in order to avoid an indirect benefit to the offender. By parity of reasoning they should not be deprived of a benefit they might otherwise be expected to take on the failure of the offender's interest.

5.22

The fear of the grandchildren passing the property to the offender is less easy to answer. If the property comes to them because of the failure of the offender's interest, rather than as a direct gift, it may be easier for the offender to persuade them that the property is "morally mine".

^[99]

^[100]

We therefore consider that:

(a) the existing law of intestate succession, in its application to forfeiture cases, leads to unsatisfactory results; and

(b) the most appropriate result in cases such as Re DWS (dec'd) is that the grandchild/contingent beneficiary should inherit.

Disclaimer

5.24

Disclaimer on intestacy is rare and, as stated above, it was doubtful until recently that it was possible. To judge from disclaimer in will cases, the usual reason for disclaimer will be either to secure beneficial tax consequences or to enable the beneficiary to avoid inheriting onerous property such as a lease with repairing covenants.

5.25

The practical urgency of the problem discussed in this paper will therefore seldom be great in disclaimer cases. If the property is onerous enough for the son or daughter to want to disclaim it, it is unlikely that the grandchild and the siblings will be greatly exercised about who has the first chance to take it. In the case of tax planning, the usual reason will be that if the property goes straight from the deceased to the grandchild, this will only incur one lot of inheritance tax, whereas if it had gone through the son or daughter there would have been two. This is a legitimate form of tax planning, but if the disclaimer route is not available a similar result can presumably be achieved by other means (for example, a deed of variation).

5.26

The "sins of the parents" argument seems artificial when applied to the disclaimer situation. It is not really a case of the parent's sins being visited on the children, rather that the disclaimer causes unwanted consequences. Nor does the indirect benefit argument apply.

5.27

The other two arguments, from the policy of the legislation and the likely wishes of the deceased, apply to the disclaimer situation as much as they do to the forfeiture situation. The fundamental reason for reform remains the same: that it is artificial for the grandchild to take before the siblings if the son or daughter has died, but for the siblings to take before the grandchild if the son or daughter cannot take for some other reason.

5.28

The case for reform is thus equally cogent in principle in the two cases, even though the disclaimer case is of less practical importance. As with forfeiture, the rarity of disclaimer cases could even be an argument for reform, as it is a problem that is unlikely to be foreseen and avoided by making a will.

5.29

The disclaimer situation would not be serious enough to justify reform if it stood alone. If however there is to be legislation on the (more serious) forfeiture problem, we consider on balance that the disclaimer situation should also be covered, though we do not regard this as of great importance.

^[101]

Wills

Forfeiture

The arguments with regard to the situation where the deceased has made a will with a substitutionary gift are slightly different from those concerned with the situation on intestacy. As noted above, the consequence of a gift failing in this situation is that, if the testator has given further indication of how the property is to be distributed, it will devolve accordingly; otherwise, it will fall under the total or partial intestacy rules.

5.31

The objection in this situation is simply that the testator's wishes may be frustrated by the effects of A's disqualification. The likely intention of the testator was that, failing A, B should benefit: the mention of A predeceasing the testator was probably there only because that is the most obvious and likely reason for A being unable to take. If an officious bystander had asked the testator "What if A is unable to take for some other reason?" the likely answer would have been "Oh, B of course".

5.32

Unlike the two situations outlined above, it is still possible that the intended default beneficiary (B) may inherit via another route: for example he may inherit under another provision of the will or under the application of the total or partial intestacy rules. The problem is therefore a less acute one than that observed in the intestacy situation. Nevertheless, the result seems objectionable because the testator's likely original wishes are thwarted by the operation of the disqualification with no guarantee that the property will end up in its intended place.

5.33

The argument made above with respect to parents' sins being visited on their children would appear to have no application to this situation. In the situation described, B need not be the child or other potential heir of A. Thus, B is not made any worse off by A's disqualification: if A had been allowed to inherit, B would have got nothing either.

5.34

The argument with respect to the policy of the intestacy legislation being thwarted is obviously irrelevant to this situation, as it arises from the interpretation of the will and not of the intestacy legislation. The consistency argument does however apply in another form. It is an arbitrary result that B should inherit if A has died, but not if A is unable to take for another reason. That is not to say that a testator might not deliberately direct this result; but it is an unlikely intention to have and should not be inferred in the absence of an express indication.

5.35

The same counter-arguments can be made as in the intestacy case: that it was open to the testator to provide specifically for the consequences, and that the difficulties are likely to occur rarely. However, they can be met with the same answers. The argument about indirect benefit to A will only apply in those cases where B is in fact A's child, which is not a necessity of the situation described; and where it does apply it can be answered in the same way as in the intestacy situation.

5.36

It could also be argued that, while the object of intestacy rules is to replicate the likely wishes of the deceased, in the case of a will the onus of stating those wishes is on the testator. To burden the Wills Act with rules of construction overriding the literal meaning of wills in order to second-guess the likely wishes of testators may be seen as excessive paternalism.

5.37

A purist approach might therefore be to exclude wills from the scope of the reform altogether. The other possibility, which we favour, is to hold that, while in principle wills ought not to be touched, the forfeiture case is so unlikely and unforeseeable that it is worth making an exception for it.

^[102]

Disclaimer of legacy

Many of the same arguments arise here as for disclaimer on intestacy and for forfeiture on wills, with the obvious exception of the indirect benefit argument. To recapitulate:

(1) Most disclaimers are either for tax purposes, in which case the same results can be achieved by a deed of variation, or because the property is onerous, in which case the substitute beneficiary is unlikely to feel aggrieved by being excluded.

(2) A well-drafted will normally provides for a residual bequest, which takes effect if any of the previous gifts fail for any reason, and this will often mean that our problem does not arise. Except in the most extreme and dramatic cases (such as forfeiture), it is wrong in principle to depart from the actual words of the will in order to second-guess what the testator would have wanted.

(3) However, where a will does provide for a gift to A, and if A predeceases the testator then to B, and A disclaims, it is still arguable that the testator is more likely to have wished the property to go to B than to fall into residue or into intestacy, and that this is the more consistent result.

Given that the case is less unforeseeable, and less practically urgent, than the forfeiture case, we consider that the normal principle of respecting the actual words of the will should prevail and that the situation arising from disclaimer of benefits under wills should be excluded from any reform.

Attestation of will by beneficiary

5.39

The situation in which a legatee loses a legacy by witnessing the will is closely analogous to the forfeiture and disclaimer cases, and is likely to occur rather more frequently. The argument for reform is the same as in the other two cases: that a default beneficiary should not be deprived because the first-line beneficiary lost his or her benefit in an unforeseen way.

5.40

In this situation, as in the forfeiture case, it is possible to raise the indirect benefit argument. That is, it could be argued that, if the purpose of forbidding a witness to the will to take is to avoid conflicts of interest,

^[103]

The answer to this is twofold. First, there would have been no disqualification if the legacy had been directly to A and B in the first instance,

^[104]

Nevertheless, as with the disclaimer situation we do not consider that the anomalous result found in this situation is important enough to justify departing from the principle of respecting the words of the will. If the questions of conflict of interest and indirect benefits are to be canvassed, this should be as part of a wider review of the attestation requirement.

Lifetime settlements

5.43

Precisely the same difficulties as in will cases may arise where property is held on trust under a lifetime settlement for L for life, with remainder to A, or if A should predecease L, to B. If A kills L, B will not fulfil the condition and the property will revert to the settlor under a resulting trust. This outcome may be innocuous if the settlor is still alive, as there is then the option of re-settling the property on B. If however the settlor is dead, the settlor's personal representatives may well decide to retain the property, even though the settlor would have preferred to benefit B.

5.44

There is an argument for saying that the logic in such cases is exactly the same as for trusts under a will: the settlor would have preferred B to benefit in the absence of A, and this has only not occurred because A's interest failed for an unforeseen reason. On the other side, it could be argued that a settlement is a more formal document than a will, and that it is right for the onus to be on the settlor to express his or her intentions exactly. Even more strongly than in will cases, the guiding principle should be to respect the actual words rather than to try to read the settlor's probable intentions between the lines. Also, once contingent interests under settlements are to be addressed, all sorts of other situations could be included, for which no single formula could be devised: for example, where A's interest is contingent on surviving some event other than a death. We therefore recommend that lifetime settlements should be excluded from the scope of the reforms, even in forfeiture cases.

Conclusion

5.45

There are seven possible situations. The interest may arise under the law of intestacy, a will or a lifetime settlement. In each of these cases it may be lost by forfeiture or by disclaimer (or renunciation); in the will case it may also be lost if the intended beneficiary witnesses the will. In all these cases, where the intended beneficiary loses the interest, the wording of the instrument excludes the default beneficiary because the intended beneficiary has not in fact predeceased the intestate, the testator or the tenant for life. In all these cases, it seems likely that the deceased or settlor would have preferred the default beneficiary to take.

5.46

It is arguable in all these cases that the property in question should go to the default beneficiary, both because this represents the likely wishes of the deceased or the settlor and in the interests of general consistency. In some cases there are additional factors for or against this conclusion: either that the present law appears to punish the children for the sins of their parents, or (as against that) that to allow the children to take would confer an indirect benefit on the parents.

5.47

The main argument on the other side is that in construing wills and settlements the aim should be to give effect to the actual wording without trying to second-guess what the testator or settlor would have wanted in some unforeseen event. If this sort of speculative re-writing were to be admitted, one would also have to consider gifts conditional on surviving an event other than a death, and there would be no end to it.

5.48

On balance, we consider that the argument for reform is strongest in connection with the law of intestacy, and that this reform should extend to both the forfeiture and the disclaimer cases. It would be reasonable to extend this reform to will cases, as concerns forfeiture only, as the exceptional and dramatic nature of these facts is something for which no testator could be expected to provide. It should not extend to disclaimer and attestation in will cases, or to lifetime settlements in any circumstances.

PART VI

POSSIBLE SOLUTIONS

Intestacy

Forfeiture

6.1

The problem of forfeiture on intestacy, as exemplified in Re DWS (dec'd),

^[105]

Deemed predecease rule

Our provisional proposal is that a person who survives the intestate but is disqualified from taking by the operation of the forfeiture rule should be deemed (without prejudice to the possibility of relief under the Forfeiture Act 1982) to have immediately predeceased the deceased.

6.3

This solution amounts to a generalised "deemed predecease" rule. The would-be successor, who is disqualified, is deemed by virtue of a legal fiction to have immediately predeceased the victim(s) and the estate devolves on this footing. Thus, on the facts of Re DWS (dec'd), R is disqualified by virtue of the forfeiture rule and, under the rule being discussed here, would be deemed to have predeceased his victims, the grandparents. By virtue of section 46(1)(ii) of the Administration of Estates Act 1925, the estate would then devolve to T, better reflecting the policy of the statute and the deceased's likely wishes and avoiding the unfortunate situation where T's interests are deleteriously and arbitrarily affected by R's actions.

Judicial reform

6.4

One solution would be to urge judicial reform and the "reading in" to the relevant provision of the Administration of Estates Act 1925 of a deemed predecease rule. This is in effect what was being urged by counsel for T in Re DWS (dec'd) where the argument was made that the effect of the rule of public policy which disbarred R from taking on intestacy was to deem R to have predeceased the grandfather.

6.5

Although this reaches the "right" result, it seems an unsatisfactory methodology. The reading in of a deemed predecease rule is a major judicial interpolation in the statute. The Court of Appeal in Re DWS (dec'd) felt unable to go this far and such a change would have to be achieved by the House of Lords.

^[106]

Statutory reform

The obvious way to introduce this "deemed predecease" rule would be by statute. We discuss below the question of whether this should take the form of a free-standing enactment or of an amendment to the Forfeiture Act 1982 or the Administration of Estates Act 1925.

^[107]

One criticism of the "deemed predecease" approach is that it imports a fiction into the law and, further, one that contains an internal contradiction. In the case of the forfeiture rule, by deeming that the would-be successor predeceased the victim, the fiction deems a state of affairs which excludes the fact of the killing itself.

^[108]

^[109]

Restatement of Restitution

^[110]

^[111]

^[112]

Discretionary power

An alternative solution is not to reverse the existing rule but to introduce a power whereby the court, or the Crown, could in the exercise of its discretion divert the property to the grandchild or contingent beneficiary if this seemed right in the circumstances. As with the introduction of the "deemed predecease" rule this could be done either by statutory provision or by judicial law-making (the bona vacantia solution). A statutory provision, in turn, could take the form of an amendment expanding the scope of the existing discretion under either the Forfeiture Act 1982 or the Inheritance (Provision for Family and Dependants) Act 1975.

Distribute property as bona vacantia

6.9

One way of introducing such a discretion is by judicial law-making, following the reasoning of Sedley LJ in Re DWS (dec'd) so as to allow the property to go to the Crown as bona vacantia; the Crown would then distribute it among the relatives as it saw fit.

^[113]

Sedley LJ reasoned in Re DWS (dec'd) that the arguments for the collaterals inheriting and the arguments for T inheriting both involved non-literal constructions of the statute. The former necessitated reading into section 46(1)(v) of the Administration of Estates Act the qualification "capable of taking" to the requirement that the deceased leave no husband, wife, issue or parent. The latter required the court to evade the requirement in section 47(1)(i) of the Administration of Estates Act that the R predecease the intestate, by reading in a fiction that R will be deemed to have predeceased the intestate if R is disqualified by virtue of the forfeiture rule. However, if a literal construction (with regard to both provisions) were taken, the result would be that the property would devolve to the Crown as bona vacantia. This result would have the advantage that the estate could then be distributed to T at the Crown's discretion.

6.11

However, distribution as bona vacantia is an unsatisfactory solution on facts such as those in Re DWS (dec'd). Whilst the possibility of allowing the property to be equitably distributed by the Crown provides a tempting flexibility, there are also defects in the scheme. First, such a discretion may provide flexibility but it also fails to provide any guarantees or even guidelines for predicting future cases and is undesirable from a policy perspective. Secondly, it is a clumsy solution as it involves the property passing through the hands of another owner. In particular, it seems odd to hold the property to be bona vacantia in circumstances where (as happened in Re DWS) the Treasury Solicitor took the view that the Crown had no interest and declined to take part in the proceedings. Thirdly, to hold that the property becomes bona vacantia seems indirectly to reverse the policy of the Forfeiture Act 1870 (and subsequent forfeiture legislation and doctrine) which abolished the "felony" rule whereby a felon forfeited his property to the Crown.

^[114]

Amend the Forfeiture Act 1982

Another possibility would be to amend the Forfeiture Act 1982, so as to provide that not only the offender but also any other person affected could apply for relief under the Act, and to allow that relief to take the form of such distribution of the forfeited assets as the court thinks fit. It would remain the law that the offender could not apply for relief if convicted of murder; other persons affected would be allowed to apply in murder cases as well as in all other cases of unlawful killing.

6.13

This solution has the disadvantage incidental to any discretionary power, namely lack of predictability, with the consequences of acrimony and expensive litigation. It has the further drawback of being confined to the forfeiture situation, leaving it to be considered whether some entirely separate solution should be found for other cases such as disclaimer. It would also take careful drafting to define the category of persons affected: at first sight T is not affected by the operation of the forfeiture rule, as he would not have inherited whether or not the forfeiture rule applied.

Amend the Inheritance (Provision for Family and Dependants) Act 1975

6.14

A third possibility would be to allow those in the position of T to apply under the Inheritance (Provision for Family and Dependants) Act 1975. At present such persons have no standing under the Act, as they are not dependants or persons for whom the deceased might have been expected to provide. This too is objectionable on the grounds of unpredictability and the likelihood of family acrimony: as applications under the 1975 Act require review of all the circumstances of the deceased and the claimant, they are notoriously slow and expensive, and the cost may be prohibitive for small estates.

^[115]

Another problem is in defining the class of possible applicants. It would seem short-sighted to restrict it to claimants defeated by a requirement that another person predecease the intestate, as this opens the prospect of a piecemeal series of small further amendments every time another quirk of inheritance law is discovered. On the other hand, to define a general class of persons deprived by quirks in inheritance law is to undermine all fixed rules of succession and throw open every estate to claims from anyone who feels hard done by.

Conclusion on forfeiture

6.16

Of the various suggestions made about forfeiture on intestacy, we consider that the statutory amendment described in paragraph 6.2, incorporating a "deemed predecease" rule, is the most satisfactory, and that it would be preferable to introducing a discretionary power. It remains to be considered whether the same solution can apply to the other situations.

6.17

Our provisional proposal is that, in a case where a person, by virtue of the forfeiture rule, loses any entitlement under the total or partial intestacy of another person, the intestacy rules should be applied as if the disqualified person had died immediately before the intestate. We further recommend that this rule should be introduced by statute.

Disclaimer

6.18

The "deemed predecease" formula could be used to cover other causes of disqualification, such as disclaimer.

6.19

One possibility is that the amendment should cover all reasons for disqualification generically, rather than making separate provision for forfeiture and disclaimer, as the principle of the desired amendment is identical in both cases. Further, it may be that the category of reasons for disqualification is not closed. For example, the intended beneficiary might be disqualified by the law of a foreign country of domicile, or be simply impossible to find. The essential object is to treat all cases where a beneficiary is unable to take for a reason not foreseen by the deceased in the same way as if the beneficiary had died: the actual reason for disqualification is in a sense of secondary importance.

6.20

It should be noted that this is exactly the approach of section 47(2) of the Administration of Estates Act 1925, which provides for the case where none of the issue have attained vested interests by treating the estate as if the intestate had left no issue. The scheme of the suggested amendment would be to apply this approach to the interface between the trusts for children and the trusts for remoter descendants, just as it now applies to the interface between trusts for issue and trusts for collaterals.

6.21

The other possibility, which we favour in the interests of certainty, is to confine the reform in terms to forfeiture and disclaimer cases. The question then arises of whether this should be done by one provision or by two. The neatest solution would be an amendment to the Administration of Estates Act 1925, covering forfeiture and disclaimer in a single provision. The alternative would be to insert a suitable provision into the Forfeiture Act 1982, but that would make it harder to find a home for the disclaimer reform. This however is a drafting question that could be left to a later stage.

6.22

Our provisional proposal is that, in a case where a person has disclaimed an entitlement under the total or partial intestacy of another person, the intestacy rules should be applied as if the disqualified person had died immediately before the intestate. We further recommend that:

(a) this rule, and the equivalent rule relating to forfeiture, should be introduced by amendment to the Administration of Estates Act 1925; and

(b) that amendment should be confined to cases of forfeiture and disclaimer, and not cover other possible causes of disqualification.

Wills

6.23

The most appropriate solution for this situation would also seem to be the enactment of a deemed predecease rule. As noted above,

^[116]

Re DWS (dec'd).

One question is whether the rule should be wide enough to cover substitutionary gifts which depend on a person predeceasing a person other than the testator. For example, T might leave his property to A for life, with remainder to B, or in case B should predecease A, to C. In such a case, if B is disqualified by the forfeiture rule, B should be treated as predeceasing A, rather than T.

^[117]

The provision about forfeiture in wills cases should take the form of an amendment to the Wills Act 1837, and should be separate from the intestacy reforms, as it does not cover disclaimer.

6.26

Our provisional proposal is that, where a person is disqualified by the operation of the forfeiture rule from receiving a benefit under the will of another person, any gift in the will contingent upon the disqualified person dying before the testator should be given effect as if that person had in fact so died. We further recommend that this reform be effected by amendment to the Wills Act 1837. We do not recommend that a similar rule be made for cases where a person is disqualified for reasons other than the forfeiture rule.

PART VII

SUMMARY OF PROVISIONAL PROPOSALS AND CONSULTATION ISSUES FOR CONSIDERATION

Intestacy

7.1

Do consultees agree with our view that:

(a) the existing law of intestate succession, in its application to forfeiture cases, leads to unsatisfactory results;

(b) the most appropriate result in cases such as Re DWS (dec'd)^[118] is that the grandchild/contingent beneficiary should inherit (Paragraph 5.23); and

(c) the most appropriate solution is to apply the intestacy rules as if the person disqualified by operation of the forfeiture rule had died immediately before the intestate (the "deemed predecease" rule)? (Paragraph 6.17)

If not, would they recommend some other reform, such as the introduction of a discretionary power? (Paragraph 6.16)

7.3

Do consultees agree with our provisional proposal that, in a case where a person has disclaimed an entitlement under the total or partial intestacy of another person, the intestacy rules should be applied as if the disqualified person had died immediately before the intestate? (Paragraph 6.22)

7.4

Do consultees agree with our provisional proposal that the deemed predecease rule (for intestacy cases where a person has forfeited or disclaimed the entitlement):

(a) should be introduced by statute (Paragraph 6.17), and

(b) specifically, by amendment to the Administration of Estates Act 1925? (Paragraph 6.22)

7.5

Do consultees agree that the proposed amendment should be confined to cases of forfeiture and disclaimer, and not cover other possible causes of disqualification? (Paragraph 6.22)

Wills

7.6

Do consultees agree that, where there is a will with a substitutionary gift and the primary beneficiary does not take by virtue of the forfeiture rule, the contingent beneficiary, whether or not the child of the primary beneficiary, ought to inherit?

7.7

Do consultees agree with our provisional proposal that, where a person is disqualified by the operation of the forfeiture rule from receiving a benefit under the will of another person, any gift in the will contingent upon the disqualified person dying before the testator should be given effect as if that person had died immediately before the testator?

7.8

If so, do they agree with our further proposals that:

(a) this reform be effected by amendment to the Wills Act 1837;

(b) that the reform be confined to the forfeiture case and not extended to cases where a person is disqualified for other reasons, such as disclaimer or attestation of the will? (Paragraph 6.26)

7.9

If consultees do not agree that the reform (so far as it relates to wills) should be confined to forfeiture cases, would they prefer the reform to extend to:

(a) disclaimer of gifts under a will (paragraph 5.38); or

(b) loss of gifts under a will by reason of being a witness to its execution? (paragraphs 5.39 to 5.42)

General

7.10

Can consultees think of any further circumstances in which a similar problem might arise, apart from forfeiture, disclaimer and beneficiary attestation? If so,

(a) should these be specifically covered; or

(b) should the proposed reform extend generally to all cases of failure to attain a vested interest for whatever reason? (Paragraph 6.19)

7.11

Should the proposed reform extend to:

(a) gifts contingent on a person dying before an event other than the death of the donor (paragraph 6.24); or

(b) contingent gifts under a lifetime settlement? (Paragraphs 5.43 and 5.44)

7.12

Do consultees think that there is any justification for maintaining the law as it is? In particular, is there substance in the concern that the grandchild/contingent beneficiary might make the property available to the primary beneficiary? (Paragraphs 5.19 to 5.22, 5.40 and 5.41)

APPENDIX: THE INTESTACY PROVISIONS

Administration of Estates Act 1925

46. Succession to real and personal estate on intestacy.

(1) The residuary estate of an intestate shall be distributed in the manner or be held on the trusts mentioned in this section, namely:--

(i) If the intestate leaves a husband or wife, then in accordance with the following table: [omitted]

(ii) If the intestate leaves issue but no husband or wife, the residuary estate of the intestate shall be held on the statutory trusts for the issue of the intestate;

(iii) If the intestate leaves no husband or wife and no issue but both parents, then, the residuary estate of the intestate shall be held in trust for the father and mother in equal shares absolutely;

(iv) If the intestate leaves no husband or wife and no issue but one parent, then, the residuary estate of the intestate shall be held in trust for the surviving father or mother absolutely;

(v) If the intestate leaves no husband or wife and no issue and no parent, then the residuary estate of the intestate shall be held in trust for the following persons living at the death of the intestate, and in the following order and manner, namely:--

First, on the statutory trusts for the brothers and sisters of the whole blood of the intestate; but if no person takes an absolutely vested interest under such trusts, then

Secondly, on the statutory trusts for the brothers and sisters of the half blood of the intestate; but if no person takes an absolutely vested interest under such trusts; then

Thirdly, for the grandparents of the intestate and, if more than one survive the intestate, in equal shares; but if there is no member of this class; then

Fourthly, on the statutory trusts for the uncles and aunts of the intestate (being brothers or sisters of the whole blood of a parent of the intestate); but if no person takes an absolutely vested interest under such trusts; then

Fifthly, on the statutory trusts for the uncles and aunts of the intestate (being brothers or sisters of the half blood of a parent of the intestate);

(vi) In default of any person taking an absolute interest under the foregoing provisions, the residuary estate of the intestate shall belong to the Crown or to the Duchy of Lancaster or to the Duke of Cornwall for the time being, as the case may be, as bona vacantia, and in lieu of any right to escheat.

The Crown or the said Duchy or the said Duke may (without prejudice to the powers reserved by section nine of the Civil List Act, 1910, or any other powers), out of the whole or any part of the property devolving on them respectively, provide, in accordance with the existing practice, for dependants, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision.

47 Statutory trusts in favour of issue and other classes of relatives of intestate

(1) Where under this Part of this Act the residuary estate of an intestate, or any part thereof, is directed to be held on the statutory trusts for the issue of the intestate, the same shall be held upon the following trusts, namely:--

(i) In trust, in equal shares if more than one, for all or any the children or child of the intestate, living at the death of the intestate, who attain the age of eighteen years or marry under that age, and for all or any of the issue living at the death of the intestate who attain the age of eighteen years or marry under that age of any child of the intestate who predeceases the intestate, such issue to take through all degrees, according to their stocks, in equal shares if more than one, the share which their parent would have taken if living at the death of the intestate, and so that no issue shall take whose parent is living at the death of the intestate and so capable of taking;

(ii) The statutory power of advancement, and the statutory provisions which relate to maintenance and accumulation of surplus income, shall apply, but when an infant marries such infant shall be entitled to give valid receipts for the income of the infant's share or interest;

[...]

(iv) The personal representatives may permit any infant contingently interested to have the use and enjoyment of any personal chattels in such manner and subject to such conditions (if any) as the personal representatives may consider reasonable, and without being liable to account for any consequential loss.

(2) If the trusts in favour of the issue of the intestate fail by reason of no child or other issue attaining an absolutely vested interest--

(a) the residuary estate of the intestate and the income thereof and all statutory accumulations, if any, of the income thereof, or so much thereof as may not have been paid or applied under any power affecting the same, shall go, devolve and be held under the provisions of this Part of this Act as if the intestate had died without leaving issue living at the death of the intestate;

(b) references in this Part of this Act to the intestate "leaving no issue" shall be construed as "leaving no issue who attain an absolutely vested interest";

(c) references in this Part of this Act to the intestate "leaving issue" or "leaving a child or other issue" shall be construed as "leaving issue who attain an absolutely vested interest."

(3) Where under this Part of this Act the residuary estate of an intestate or any part thereof is directed to be held on the statutory trusts for any class of relatives of the intestate, other than issue of the intestate, the same shall be held on trusts corresponding to the statutory trusts for the issue of the intestate (other than the provision for bringing any money or property into account) as if such trusts (other than as aforesaid) were repeated with the substitution of references to the members or member of that class for references to the children or child of the intestate.

(4) References in paragraph (i) of subsection (1) of the last foregoing section to the intestate leaving, or not leaving, a member of the class consisting of brothers or sisters of the whole blood of the intestate and issue of brothers or sisters of the whole blood of the intestate shall be construed as references to the intestate leaving, or not leaving, a member of that class who attains an absolutely vested interest.

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Note 1    Item 4 of the Sixth Programme of Law Reform (1995) Law Com No 234; item 3 of the Eighth Programme of Law Reform (2001) Law Com No 274.    [Back]

Note 2    [2001] Ch 568 (CA).    [Back]

Note 3    Similarly, when the deceased was killed by a brother, sister, aunt or uncle the descendants of the killer are excluded in favour of remoter relatives: para 2.13 below.    [Back]

Note 4    Paras 5.38 to 5.44.    [Back]

Note 5    Illegal Transactions: The Effect of Illegality on Contracts and Trusts (1998) Consultation Paper No 154, para 7.2.    [Back]

Note 6    Para 2.3 below.    [Back]

Note 7    Paras 6.12 and 6.13 below.    [Back]

Note 8    See below, para 4.8 et seq.    [Back]

Note 9    1990 Report on Succession Law (Scot Law Com No 124).    [Back]

Note 10    See Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147, 155; In the Estate of Crippen [1911] P 108, 112; In the Estate of Hall [1914] P 1, 5; Re Callaway [1956] Ch 559, 562; Re Giles (dec’d) [1972] Ch 544, 551; Re Royse (dec’d) [1985] Ch 22; Re K (dec’d) [1985] Ch 85.    [Back]

Note 11    Para 2.3 below.    [Back]

Note 12    See Forfeiture Act 1982, s 1(1). This includes those who have unlawfully aided, abetted, counselled or procured the death of another (s 1(2)).     [Back]

Note 13    See Cleaver v Mutual Reserve Fund Association [1982] 1 QB 147; In the Estate of Crippen [1911] P 108; Re Sigsworth [1935] Ch 89; Re Pollock [1941] Ch 219; Re Callaway [1956] Ch 559. The successor need not have been convicted. The rule does not apply where the verdict is “not guilty by reason of insanity”.    [Back]

Note 14    In the Estate of Hall [1914] P 1, 7; Re Giles (dec’d) [1972] Ch 544.    [Back]

Note 15    For the effect of offences such as causing death by dangerous driving and assisting suicide, see Dunbar v Plant [1998] Ch 412, discussed by Stuart Bridge, “Assisting Suicide Rendered Financially Painless” [1998] CLJ 31.    [Back]

Note 16    See Re Sigsworth [1935] Ch 89; Re Giles (dec’d) [1972] Ch 544; Re Royse (dec’d) [1985] Ch 22.    [Back]

Note 17    As amended by the Intestates Estates Act 1952.     [Back]

Note 18    This is without prejudice to their entitlement to apply for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.    [Back]

Note 19    See Forfeiture Act 1982, s 2(5).    [Back]

Note 20    Ibid, see s 2(4).     [Back]

Note 21    [2001] Ch 568 (CA).    [Back]

Note 22    By the combined effect of Law of Property Act 1925, s 184 and Administration of Estates Act, s 46(3) neither is treated as having survived the other for succession purposes.    [Back]

Note 23    This provides that “…if the intestate leaves issue but no husband or wife, the residuary estate of the intestate shall be held on the statutory trusts for the issue of the intestate”. It was accepted by both sides that R was disqualified from benefiting from his parent’s estate.     [Back]

Note 24    [2000] 2 All ER 83.    [Back]

Note 25    “If the intestate leaves no husband or wife and no issue and no parent, then the residuary estate of the intestate shall be held in trust for the following persons living at the death of the intestate… First, on the statutory trusts for the brothers and sisters of the whole blood of the estate.”    [Back]

Note 26    [2001] Ch 568, 592-3 (paras 37-42). Sedley LJ hinted that the bona vacantia property might then be allocated to the grandson on the basis that the policy of the law is generally to prefer the less to the more remote, citing Harman J in Re Lockwood (dec’d) [1958] Ch 231.     [Back]

Note 27    For all these provisions see the Appendix.    [Back]

Note 28    See also R Kerridge, “Visiting the Sins of the Fathers on their Children” (2001) 117 LQR 371 and R Wallington, “Unlawful Killing, Disclaimer and the Intestacy Rules” [2001] NLJ 22 June, 919. All four judges who heard the case at first instance and in the Court of Appeal expressed sympathy with T although none felt able to grant his claim.    [Back]

Note 29    T has filed a petition at the ECHR under the name TGWS (Severs) v UK, although the case has yet to be heard on its merits.    [Back]

Note 30    See NPBS v UK (1998) 25 EHRR 127; Marckx v Belgium (1979-80) 2 EHRR 330 and Inze v Austria (1987) 10 EHRR 394.    [Back]

Note 31    See James v UK (1986) 8 EHRR 123.    [Back]

Note 32    Para 5.4 below.    [Back]

Note 33    The concepts of privacy and family life in Article 8 have been applied in a wide variety of contexts: see A Lester and D Pannick, Human Rights Law and Practice (1999) p 165. Nevertheless it is uncertain whether it would prohibit interference with ties of kinship with deceased relatives.     [Back]

Note 34    [2001] Ch 568 (CA).    [Back]

Note 35    [1975] 1 WLR 1260.    [Back]

Note 36    See W Goodhart, “Disclaimer of Interests on Intestacy” (1976) 40 Conv (NS) 292 andR D Oughton, “Disclaimer of Interests on Intestacy — an American Viewpoint” (1977) 41 Conv (NS) 260. However, English law, unlike New Zealand law, contains no express statutory recognition of the power to disclaim an interest on intestacy.    [Back]

Note 37    See the judgment of Sedley LJ in Re DWS (dec’d), [2001] Ch 568, 592 (para 34).    [Back]

Note 38    There is no such problem where B’s interest is vested, as in those circumstances the doctrine of acceleration will apply, see Re Taylor [1957] 1 WLR 1043.    [Back]

Note 39    See, for example, Ross v Caunters [1980] Ch 297.    [Back]

Note 40    See D E C Yale, “Witnessing Wills and Losing Legacies” (1984) 100 LQR 453.    [Back]

Note 41    Although the latter is highly unlikely since testators are unlikely to foresee such an eventuality.    [Back]

Note 42    See, for example, Re Plowman [1943] Ch 269.    [Back]

Note 43    Depending on whether the failed gift constitutes the whole or merely a part of the deceased’s estate.    [Back]

Note 44    See, for example, Re Sullivan [1930] 1 Ch 84 (disclaimer); Ross v Caunters [1980] Ch 297 (beneficiary attestation).    [Back]

Note 45    By amendment to the Wills Act 1837, s 33.    [Back]

Note 46    [1985] Ch 446.    [Back]

Note 47    See Family Law: The Effect of Divorce on Wills (1993) Law Com No 217; Cmnd 2322.    [Back]

Note 48    See Law Reform (Succession) Act 1995, s 3.    [Back]

Note 49    [2001] Ch 568 (CA).    [Back]

Note 50    See, for example, South Africa (Casey v The Master 1952 4 SA 505 (N); Makhaya v Minister for Finance [1997] 2 ASA 227 (D)), Scotland (Smith, Petr 1979 SLT (Sh Ct) 35) and the USA, below.    [Back]

Note 51    French Civil Code, article 726.    [Back]

Note 52    Ibid, article 727.    [Back]

Note 53    Ibid, article 730 (pre-1st July 2002 text). “Representation” is the principle whereby, if a potential heir has died before the deceased, his or her presumptive share is taken by the potential heir’s descendants.    [Back]

Note 54    Ibid, article 745, alinéa 2 (pre-1st July 2002 text); articles 744, 752 (from 1st July 2002).    [Back]

Note 55    Ibid, article 744, alinéa 1 (pre-1st July 2002 text).    [Back]

Note 56    Ibid, articles 729-1 and 754 (from 1st July 2002).    [Back]

Note 57    Ibid, article 755 (from 1st July 2002).    [Back]

Note 58    Ibid, article 754 (from 1st July 2002).    [Back]

Note 59    Italian Civil Code, article 463.    [Back]

Note 60    Italian Civil Code, article 467.    [Back]

Note 61    See R Kerridge, “Visiting the Sins of the Fathers on their Children” (2001) 117 LQR 371, 374.    [Back]

Note 62    See J B Ames, “Can a Murderer Acquire Title by his Crime?” (1890) 4 Harv L R 394; Ames, Lectures on Legal History (1913), p 310.    [Back]

Note 63    R Goff and G Jones, The Law of Restitution (6th ed 2002) para 38-003.    [Back]

Note 64    A Oakley, Constructive Trusts (1997) pp 50-1.    [Back]

Note 65    [1892] 1 QB 147.    [Back]

Note 66    See para 40 of Re DWS (dec’d), citing Rasor v Rasor (1934) 175 SE 545. See also statutory provisions of Ohio, Nebraska and North Dakota (Page’s Ohio General Code; Compiled Statutes of Nebraska 1929; Compiled Laws of North Dakota 1913).    [Back]

Note 67    (1944) 156 ALR 617.    [Back]

Note 68    Scot Law Com No 124.    [Back]

Note 69    Smith, Petr 1979 SLT (Sh Ct) 35.    [Back]

Note 70    Burns v Secretary of State for Social Services 1985 SLT 351; Paterson, Petr 1986 SLT 121; Cross, Petr 1987 SLT 384; Gilchrist, Petr 1990 SLT 494; Hunter’s Exrs, Petrs 1992 SLT 1141.    [Back]

Note 71    Under Scottish law there is also the Parricide Act 1594, which disinherits anyone convicted of killing a parent or grandparent. However, the Act is of extremely limited scope and its practical impact is minimal. There are no reported cases of it ever having been used to disinherit anyone and the Scottish Law Commission has recommended its repeal in the 1990 Report.    [Back]

Note 72    This was taken to imply that the killer was deemed to have predeceased the deceased.    [Back]

Note 73    Volume 25, para 672.    [Back]

Note 74    Some Miscellaneous Topics in the Law of Succession (1986) Consultative Memorandum No 71.    [Back]

Note 75    Scot Law Com No 124, para 7.18.    [Back]

Note 76    1992 SLT 1141.    [Back]

Note 77    It has consequences for the scope of the forfeiture rule in general, however.    [Back]

Note 78    Succession (Scotland) Act 1964, s 5 is the functional equivalent of Administration of Estates Act 1925, s 47(1)(i).    [Back]

Note 79    Para 2.14.    [Back]

Note 80    [2001] Ch 568 (CA).    [Back]

Note 81    See R Kerridge, “Visiting the Sins of the Fathers on their Children” (2001) 117 LQR 371.     [Back]

Note 82    T was aged two at the time of the murders.    [Back]

Note 83    [1958] Ch 231, 234-5.    [Back]

Note 84    R Wallington, “Unlawful Killing, Disclaimer and the Intestacy Rules” [2001] NLJ 919.     [Back]

Note 85    See the judgment of Blackburne J at first instance in Re DWS (dec’d) [2000] 2 All ER 83, 91 where he analyses an analogous argument with regard to how sections 46 and 47 of the Administration of Estates Act 1925 should be interpreted.     [Back]

Note 86    C Sherrin & R Bonehill, The Law and Practice of Intestate Succession (2nd ed 1994) p 16. The Law Commission accepted in Family Law, Distribution on Intestacy (1989) Law Com No 187 that the presumed intentions of the deceased were the principal basis of the existing law.    [Back]

Note 87    Cooper v Cooper (1874) LR 7 HL 53, 66, referring to the Statutes of Distribution.    [Back]

Note 88    See the judgment of Sedley LJ in the Court of Appeal, [2001] Ch 568, 593 (para 41).    [Back]

Note 89    See C Sherrin & R Bonehill, The Law and Practice of Intestate Succession (2nd ed 1994) p 16.    [Back]

Note 90    Ibid, pp 19-20.    [Back]

Note 91    See Administration of Estates Act 1925, s 46(1)(v).    [Back]

Note 92    See, for example, Re Groffman [1969] 1 WLR 733. Another example might be the entitlement of grandchildren. Grandchildren do not take directly but take their deceased parent’s interest by representation. This leads to inequalities where the sons and daughters of the deceased have different numbers of children.    [Back]

Note 93    Distribution on Intestacy (1988) Working Paper No 108.    [Back]

Note 94    See, for example, Law Com No 187 (above). The Scottish Law Commission has adopted a similar approach.    [Back]

Note 95    This was the approach taken in New Zealand when the Administration Amendment Bill 1965 was introduced.    [Back]

Note 96    See Law Com No 187 (above) para 24; also the Report of the Committee on the Law of Intestate Succession (“the Morton Report”) (1951) Cmd 8310.    [Back]

Note 97    As is shown by their occurrence in other jurisdictions: see Part IV.    [Back]

Note 98    The problem will not normally arise while the grandchildren are minors, as the statutory trust for issue only includes grandchildren who attain the age of eighteen years or marry under that age (Administration of Estates Act 1925, s (1)(i)).    [Back]

Note 99    Though if the grandchild does transfer the property to the offender as a result of this kind of pressure, the gift could be undone under the law of undue influence.    [Back]

Note 100    Though this will seldom be the case: see n 98 above.    [Back]

Note 101    For our provisional proposals on disclaimer, see para 6.22 below.    [Back]

Note 102    For our provisional proposals on forfeiture of interests under wills, see para 6.26 below.    [Back]

Note 103    See paras 3.4 and 3.5 above.    [Back]

Note 104    Or to WW if alive at the date of death “and so far as not hereinbefore disposed of” to Aand B.    [Back]

Note 105    [2001] Ch 568 (CA).    [Back]

Note 106    This is highly unlikely. Apart from anything else, the House of Lords refused leave to appeal in Re DWS (dec’d).    [Back]

Note 107    Paras 6.21 and 6.25 below.    [Back]

Note 108    Re DWS (dec’d), judgment of Aldous LJ, [2001] Ch 568, 589 (para 22).    [Back]

Note 109    Para 3.10 above.    [Back]

Note 110    Para 4.6 above.    [Back]

Note 111    Paras 4.8 et seq.    [Back]

Note 112    Also, statutory provisions of Ohio, Nebraska and North Dakota.     [Back]

Note 113    Administration of Estates Act 1925, s 46(1) last paragraph, set out in para 2.6 above.    [Back]

Note 114    Forfeiture Act 1870, s 1. See also R Kerridge, “Visiting the Sins of the Fathers on their Children” (2001) 117 LQR 371, 373.    [Back]

Note 115    Even where legal aid is available, the costs will eventually come out of the estate through the statutory charge. For this effect in probate and inheritance cases generally, see T Goriely and P Das Gupta, Breaking the Code: The Impact of Legal Aid Reforms on General Civil Litigation (Institute of Advanced Legal Studies 2001) pp 129-130.    [Back]

Note 116    Paras 5.30 et seq.    [Back]

Note 117    This logic applies in forfeiture cases regardless of whether B has killed A or T.    [Back]

Note 118    [2001] Ch 568 (CA).    [Back]

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You are here: BAILII >> Databases >> The Law Commission >> The Forfeiture Rule and the Law of Succession (Consultation Paper) [2003] EWLC 172(1) (30 September 2003) URL: http://www.bailii.org/ew/other/EWLC/2003/172(1).html Cite as: [2003] EWLC 172(1)