What does the Assisted Dying Bill mean for the rule on forfeiture? An examination of case law and statutory developments from 2024

Whether terminally ill people should have the right to medical assistance to end their lives has long been debated in the UK. Assisted dying is once again up for public discussion, with the introduction of Kim Leadbeater’s Private Member’s Bill, The Terminally Ill Adults (End of Life) Bill, more commonly known as the Assisted Dying Bill (the Bill). The Bill proposes to legalise assisted suicide for "terminally ill adults" in prescribed circumstances.

Although suicide was decriminalised in 1961, the current position, unless and until the Bill is enacted, is that assisting someone in taking their own life is an offence under s2 of the Suicide Act 1961 ("the 1961 Act"), carrying a maximum prison sentence of 14 years. The operation of s2 is mitigated by s2(4), whereby a prosecution under this section cannot take place without the consent of the Director of Public Prosecutions (DPP).

The Bill passed its second reading in the House of Commons on 29 November 2024. This is just the first hurdle, and it will face many more months of scrutiny in order to become law. 

Forfeiture Rule

A lesser-known facet of the laws on assisted dying is the operation of the forfeiture rule. The Forfeiture Act 1982 (the Forfeiture Act) applies to offences under the 1961 Act s.2(1). It provides that any person who has "unlawfully killed" another person is barred from acquiring a benefit from that person’s death. This includes any kind of financial or proprietary benefit obtained under a will (or intestacy).

This year, for example, we saw the Leeson v McPherson case. In this case, a husband was blocked from inheriting his deceased wife’s estate of £4.4 million, following her death by drowning in the swimming pool of a Danish holiday cottage where they were staying. There was not enough evidence in the criminal trial of the case for Donald McPherson to be convicted of Paula Leeson’s unlawful killing. In the civil trial, however, Mr Justice Smith was satisfied that on the balance of probabilities Donald McPherson was guilty. He was therefore barred from acquiring any benefit under Paula Leeson’s will, intestacy or any property held by her under a joint tenancy.

This case perfectly demonstrates the need for such a rule. And in most cases the public policy need is clear. However, the rule on forfeiture can give rise to difficult and emotionally charged situations when applied to relatives helping terminally ill family members access assisted dying. Unless relief is granted by the court, the surviving relative can be prevented from receiving any benefit from the deceased’s estate.

Reported cases under the forfeiture rule are very rare, even more so where they interrelate with the issues being addressed by the Bill. Despite this, we have seen not one but two reported judgments on this issue in the past year.

Morris v Morris, Shmuel and White [2024] EWHC 2554 (Ch)

Background

The claimant’s wife, Myra Morris (Myra), suffered from Multiple System Atrophy. As a result of her condition, Myra made the decision to end her life at a clinic in Switzerland. Myra’s husband Philip Morris (Philip) reluctantly helped her carry out the necessary arrangements for this. Philip also took advice on the administrative actions that he would be taking to assist Myra, which included witness statements from Myra and her solicitor as to her settled intention, and accompanying her to Switzerland, in order to ensure that he was unlikely to be prosecuted under s2 of the 1961 Act.

When Phillip returned from Switzerland to England, he reported Myra’s assisted death to the police, where he was informed that there was “nothing to report” and that he would not face prosecution. Unfortunately, however, Philip had not been made aware of the existence of the rule on forfeiture. It was not until February 2024, when arranging for the administration of Myra’s estate, that Philip learned that he would need to apply for relief from forfeiture in order to inherit Myra’s residuary estate under her will.

Decision

The High Court granted Philip’s application for relief in full. Having analysed each of the sixteen factors listed in the DPP’s “Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide”, the judge found that Philip made a clear and compelling case for relief, taking into account both his conduct and that of Myra. In particular, the judge placed weight on Myra’s determination to end her own life. In contrast, Philip’s reluctant assistance was found to be “wholly motivated by compassion”. 

The judge also considered the question of whether Myra’s children could fall within scope of the forfeiture rule, through the action of accompanying Myra to the Swiss clinic. The judge acknowledged that while such actions could in theory be capable of amounting to "assistance" or "encouragement" under s2 of the 1961 Act, the children’s actions did not meet the threshold in this case; the children were found to act merely as "comforters" rather than providing tangible assistance.

The decision is Morris shows that:

• Accompanying a person abroad in circumstances where that person seeks to end their life does not necessarily amount to an offence.
• Nevertheless, persons who have accompanied the deceased abroad for that purpose may need to be joined as parties to the proceedings.

Withers Trust Corporation v Estate of Goodman [2023] EHC 2780 (Ch)

Withers Trust Corporation v Estate of Goodman provided another important example on the forfeiture rule’s operation in the context of a “mercy killing”.

Facts

Hannah Goodman (Hannah) suffered from terminal lung cancer. After several unsuccessful rounds of treatment, Hannah developed a settled and clear intention to end her life. Unlike in Morris, however, the pandemic prevented Hannah from travelling to Switzerland. Hannah’s husband Adrian Berry (Adrian) therefore assisted her with carrying out her decision.

Following Hannah’s death, Adrian was appointed as executor of her estate, under which he was also sole beneficiary. Adrian passed away two years after Hannah and before the administration had finished, leaving Wither’s Trust Corporation (the Claimant) appointed as executor of his estate.

Subject to Adrian’s interest, Hannah had provided for her residuary estate to be held on a discretionary charitable trust. Adrian’s will also left his estate to a charitable trust with a similar charitable purpose to that of Hannah’s. Due to the ambiguous drafting of Hannah’s will however, her charitable gift failed to qualify for the charitable tax exemption. On the other hand, no such issue arose in Adrian’s will, meaning it would attract the relevant exemption. Therefore, if Adrian was able to inherit Hannah’s estate under her will, both couple’s estates would pass to their preferred charity free of Inheritance Tax.

The role that Adrian played in Hannah’s death meant that, without relief, the forfeiture rule would operate to bar him from inheriting anything. If Adrian did not inherit, Hannah’s estate would be subject to a large Inheritance Tax bill, which would correspondingly detract from the value of the couple’s intended charitable gifts.

Withers Trust Corporation brought Part 8 proceedings for relief from forfeiture, in an attempt to avoid the significant tax consequences for the charitable legacies. Recognising Adrian’s minimal moral culpability and compassionate motivations, the High Court granted the application for relief and the spouses’ gifts to charity were made, free of Inheritance Tax.

Assisted Dying Bill

Recent public discourse suggests that the laws in this area are ripe for reform. As currently drafted, the Bill will allow for certain terminally ill persons (with six months or less to live) to legally end their lives, if they meet the following requirements:

• The person must make two declarations, which are both witnessed and signed, confirming their settled and informed wish to die.
• The person must undergo assessments by two independent doctors who are both satisfied the person is eligible under the Bill.
• A High Court judge must then make a declaration to confirm they are satisfied that the legislative requirements have been met. The High Court may also choose to hear from and question the person who has made the application, as well as either of the two doctors, before making a decision.

Kim Leadbeater has described the Bill as having some of the strictest protections and safeguards of any "assisted dying" legislation found anywhere in the world. 

Under the Bill, provisions are inserted into the Suicide Act 1961 at new section 2AA which provides relief from liability, or alternatively a defence, for a person who assists someone in ending their life in accordance with the Bill’s provisions. If there is no offence under the Suicide Act 1961, it follows that there is no unlawful killing under the Forfeiture Act and therefore no debarment from inheriting under the deceased’s estate.   

However, the Bill is still in its early stages and is liable to undergo further amendments before becoming law. The interaction between the Bill and the Forfeiture Act will likely require further consideration. It is worth noting that those who do not meet the very high threshold in terms of legislative criteria and prescriptive inbuilt safeguards within the Bill risk falling foul of the rules on forfeiture. 

Conclusion

For now, and until implementation of the Bill, the laws on forfeiture continue to apply to all cases of assisted dying. Those considering assisting relatives in accessing assisted dying should therefore take legal advice on the terms of the Suicide Act 1961 and the financial consequences of the forfeiture rule, and act promptly when making an application for relief to the court.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.