Macmillan Cancer Support v Hayes [2017] EWHC 3110 (Ch)

» This case is an interesting illustration of (1) the effect of the forfeiture rule (a common law rule of public policy that a person who has been criminally responsible for the death of another cannot inherit on that death), and (2) the court’s power under the Forfeiture Act 1982 to modify the effect of the rule in suitable circumstances.

A tragic set of circumstances led to Peter Thomson (84) unlawfully killing his wife Sheila (88) and then taking his own life. They were a loving and devoted married couple who had no children.

Peter was found hanging in the hallway of their home with an envelope attached to his chest recording that his wife had died at approximately 20:10 on 18 April 2015. Sheila was found fully clothed peacefully lying in a reclining chair in the sitting room. On the table next to her was a typed letter dated 18 April 2015 addressed to the coroner and signed by Peter. The letter recorded that he and his wife had previously discussed the future and concluded that when their normal lives were over it would be better for both to bring their lives to a close while still capable of doing so. It recorded that Peter had recently been diagnosed with prostate cancer and had a grossly enlarged aorta which could rupture at any time. He recorded that Sheila would be heavily sedated and then suffocated and that he would then hang himself.

Sheila was suffering from advanced dementia and did not have the necessary capacity at the time of her death to consent so, had Peter lived, he would have been charged with murder.

Clause 3 of Sheila’s will provided that her estate was to pass to Peter, provided he was proved to have survived her, and clause 4 ‘provided that if Peter shall not be proved to have survived me then I direct and declare that the subsequent clauses of this will shall take effect in lieu of clause 3 hereof’. The subsequent clauses made a number of gifts to charities and friends.

Peter’s will (made shortly before his death) provided for the same charities and friends which were the beneficiaries under his wife’s will.

Peter had survived Sheila so would have inherited but for the forfeiture rule. If his benefits were forfeit, Sheila would be intestate and some distant Australian relatives would be the beneficiaries of her estate under the intestacy rules. The charities and friends would not benefit because under the wording of the will, they took only if Peter was not proved to have survived her.

The estates of Sheila and Peter were each approximately £600,000.

The Macmillan charity applied for relief against forfeiture so that Sheila’s beneficiaries could benefit via Peter’s will.

Provided the person who has killed another has not been convicted of murder, section 2 of the act allows the court to modify the effect of the forfeiture rule if 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 in that case’. Peter had not been convicted of murder so it was open to the court to consider granting relief, having regard to: (1) the conduct of the offender; (2) the conduct of the deceased; (3) other material circumstances. The judge considered that in all the circumstances relief should be granted. It would enable Sheila’s wishes to be put into effect, albeit through her husband’s will. His view on the three mandatory considerations was, as follows:

(1) Peter’s conduct

This was premeditated, fastidious, open, honest and straightforward from the point of view of those who had to investigate this killing. He had left full details to assist the investigations.

(2) Sheila’s conduct  

On the balance of probable facts her severe dementia meant that she could not be responsible for her own conduct.

(3) Other material circumstances

The judge considered the seven factors set out by Mummery LJ obiter in Dunbar v Plant [1998] Ch 412 (a suicide pact case). Of particular importance was the loving relationship between the couple and the fact that Peter believed that he and his wife had pre-agreed that, in the event that their ‘normal’ lives were over, they would bring their lives to an end while capable of doing so. It was also important that Peter went out of his way to ensure that Sheila was comfortable and did not suffer. Also he achieved no financial benefit from the death of his wife as he committed suicide afterwards.

The charity brought an alternative application for relief under section 33A of the Wills Act 1837. This section was inserted by the Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011 based on recommendations in the Law Commission’s The Forfeiture Rule and the Law of Succession, Report No 295. The recommendation was that where a person forfeits a benefit under a will because they killed the testator, the will should take effect as if the killer had died immediately before the testator, unless it provides otherwise. The provision enacted is more limited. It provides that a person prevented by the forfeiture rule from taking under a will is treated as having predeceased the testator for the purposes of 1837 act.

The editors of Williams on Wills suggest that this wording has not achieved the clear intention of the commission. The effect appears to be that substitution will operate in relation to issue under section 33 of the 1837 act, but an express substitution clause in a will which substitutes non-issue for a primary beneficiary in the event of the latter predeceasing the testator, will not so operate.

Judge Raeside said that, if correct, this gave rise to an interesting argument as to whether ‘Homer nodded’ and therefore whether this court should embark upon an exercise of statutory rectification. However, he declined to express a view on the effect of section 33A. He was satisfied that relief from forfeiture should be given under the the 1982 act and it was, therefore, unnecessary to consider the charity’s second application which would achieve the same result. This was not a case where the argument on section 33A needed to be resolved and he expressed no views on its merits.