The forfeiture rule does not come up frequently, but where it does apply it can change the devolution of an estate, which can impact charity beneficiaries.

What is assisted dying?

There is a range of terminology used in relation to assisted dying. Some of the key terminology is as follows:

• Voluntary euthanasia: this term describes the process of a doctor or other medical professional directly administering life ending drugs to a patient who has given consent.
• Assisted dying: Proponents of the Assisted Dying Bill 2015 in England and Wales argue that this term best describes prescribing life ending drugs for terminally ill, mentally competent adults to administer themselves after meeting strict legal safeguards.

Assisted dying, as defined like this, is legal and regulated in the US states of California, Colorado, Hawaii, Montana, Oregon, Vermont, and Washington, and in Washington, DC. In 2017, similar legislation was passed in Victoria, Australia.

• Assisted suicide: This term is often intended to describe giving assistance to die to people with long term progressive conditions and other people who are not dying, in addition to patients with a terminal illness. The drugs are self-administered. The British Medical Journal notes that some opponents of assisted dying do not accept that it is different from assisted suicide.

Assisted suicide, as defined like this, is permitted in Switzerland.

In this note we use the term 'assisted dying' to refer to both assisted dying and assisted suicide.

What is the forfeiture rule and how is it relevant to assisted dying?

Committing suicide or trying to kill yourself is not a criminal act under English law. However, assisting someone else to take their life is illegal. Section 2 of the Suicide Act 1961 provides that a person who 'aids, abets, counsels or procures' the suicide of another person commits a criminal offence. It is punishable by up to 14 years' imprisonment.

CPS guidance on prosecutions 

Conduct in these cases can range from circumstances where a victim is being pressured to end their life, to actions wholly motivated by compassion.

The Crown Prosecution Service collects data and publishes updates each year on the number of criminal cases relating to assisted suicide.

From 1 April 2009 up to 31 March 2024, the CPS recorded:

• 187 cases referred to the CPS by the police that have been recorded as assisted suicide.
• Of these 187 cases 127 were not proceeded with by the CPS and 36 cases were withdrawn by the police.
• The CPS reports that there are currently six ongoing cases:
  • Four cases of encouraging or assisting suicide have been successfully prosecuted;
  • One case of assisted suicide was charged and acquitted after trial in May 2015; and
  • Eight cases were referred onwards for prosecution for homicide or other serious crime.

In 2010, Keir Starmer, who was at that time the Director of Public Prosecutions ('DPP') issued a guidance note titled 'Suicide: Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide' (the guidance note was then updated in 2014).

The guidance note states that the consent of the DPP is required before an individual may be prosecuted for assisting someone to take their own life pursuant to the offence at Section 2 of the Suicide Act 1961.

The note distinguishes between encouraging or assisting suicide and manslaughter/murder. The act of suicide requires the victim to take his or her own life. It is murder or manslaughter for a person to do an act that ends the life of another, even if he or she does so on the basis that he or she is simply complying with the wishes of the other person concerned. So, for example, if a victim attempts to commit suicide but succeeds only in making him or herself unconscious, a person commits murder or manslaughter if he or she then does an act that causes the death of the victim, even if he or she believes that he or she is simply carrying out the victim's express wish.

The guidance note also clarifies that a person who does not do anything other than provide information to another which sets out or explains the legal position in respect of the offence of encouraging or assisting suicide under section 2 of the Suicide Act 1961 does not commit an offence under that section.

Recent case law on assisted dying and the forfeiture rule

There have been a number of recent civil law cases on the application of the forfeiture rule in relation to assisted dying.

Macmillan Cancer Support v Hayes (2018)

A tragic set of circumstances led to Peter Thomson unlawfully killing his wife Sheila Thomson and then taking his own life.

The Judgment records that Peter and Sheila were a loving and devoted couple. They did not have any children.

Peter and Sheila had agreed that when their normal lives were over they would end their lives while still capable of doing so.

However, Sheila was diagnosed with dementia and in 2015 Sussex Partnership NHS Foundation Trust made a decision that she should reside permanently in a care home in Chichester. Peter was devastated that he would no longer be able to care for his wife at home and he was concerned that she would not receive the quality of care he had provided for his wife. 

Peter was also diagnosed with prostate cancer and a grossly enlarged aorta which could rupture at any time.

Peter took Sheila's life and then his own on 18 April 2015. Peter was found hanged in the hallway of his home and Sheila was found reclining in a chair in the living room. There were no marks on her body which would suggest any form of violence. Notes left by Peter recorded the agreement he and Sheila had about ending their lives, and his recent medical diagnoses. The note also recorded that Sheila would be heavily sedated and then suffocated and that he would then hang himself.

Sheila was residing in the care home at this point. On the day of their death, Peter collected Sheila from the care home and promised to return her the next day.

The Coroner's Record of the deaths noted that Sheila did not have the capacity at that stage to make the decision to end her own life. The Coroner therefore had to record that she was unlawfully killed.

As Peter unlawfully killed Sheila, the forfeiture rule applied.

Macmillan (represented by Withers) issued an application seeking an order that the forfeiture rule be modified such that Peter be granted relief from forfeiture, and a declaration that Sheila's Will should take effect as though Peter should be treated as having died immediately before her. Macmillan issued its application as the representative charity on behalf of the charity beneficiaries under Peter's Will.

The application of the forfeiture rule meant that Sheila's estate would pass to distant relatives in Australia. If relief from forfeiture was granted by the Court then Sheila's estate would pass to Peter, and under his Will a number of charities (including Macmillan) and the couple's friends would benefit.

The Judgment records that: '[…] it seems that Peter did genuinely believe that he was acting in his wife’s best interests given that she was incapable of acting for herself. In addition, Peter was worried that given her dementia, the Best Interests decision and his illness, Sheila would not receive the best standards of care in the home. I therefore find that it is morally justifiable that he would take an active part in assisting with her death and that in doing so he genuinely considered that he was acting in her best interests.'

The Judgment also records that Peter personally achieved no financial benefit from the death of his wife.

The Judge concluded that the forfeiture rule should be disapplied and that Sheila's estate should pass to Peter and be distributed in accordance with his Will (ie to the charities and the couple's friends).

Paul Hewitt acted for Macmillan.

Withers Trust Corporation v Goodman (2023)

Hannah Goodman passed away in July 2020, three years after being diagnosed with lung cancer. The day before she died, she had a home visit from her doctor who recorded that Hannah was struggling with pain, fear and terror. She had told her doctor she wanted to attend Dignitas but could not, due to the pandemic.

She left her estate to her husband Adrian, failing which to a discretionary charitable trust. Hannah wanted this trust to establish a foundation that would benefit those with an interest in the classic car industry, as well as providing apprenticeships for 16 to 25 year olds. The firm who drafted her Will used wording which was too broad for her charitable legacy to be exempt from inheritance tax.

Adrian administered her estate and then made a new Will, leaving his estate to charity and naming Withers Trust Corporation (WiTCo) as his executor. In his letter of wishes, he said that he wanted his beneficiary to be a foundation he would establish, called the Armiger Foundation, with the purpose of promoting education about classic and historical vehicles and providing apprenticeships.

In December 2020, Adrian wrote an apparent suicide note to his solicitor. The solicitor reported this to the police, who visited and found him alive and unharmed, but in a very sad space. The note concluded by stating: 'And so it was that evening Adrian did what Hannah wanted, and what he was later to regret to the bottom of his heart, not only ending the life of another human being which was bad enough, but to have killed his best and only friend proved an action that he just could not bear.'

In May 2022, Adrian sent his local funeral directors instructions for his funeral, with his eulogy. This ended 'Adrian felt that it was by his own hand that he had released Hannah at her own wish from the impossible burden of dying of cancer'. He asked the undertakers to place death notices for newspapers, to record that he had died of a broken heart. Adrian took his own life in June 2022, by carbon monoxide poisoning.

If Adrian had assisted Hannah to commit suicide then, under the forfeiture rule, he would have been unable to benefit on her death (whether from her estate or other assets such as her pension).  As Adrian had already administered Hannah's estate, the effect of the rule was that WiTCo held all the proceeds of Hannah's estate on trust for her other beneficiaries (ie the charitable trust).  The wording of Hannah's will means that this gift to charity would not qualify for the charitable exemption from inheritance tax and so around £200,000 would be due.  Trying to disentangle Hannah and Adrian's assets would have been complex.

In order to address this, WiTCo applied for an order for relief from the forfeiture rule.  If successful, this would mean that Adrian still inherited Hannah's assets, and these would then pass via Adrian's Will to the Armiger Foundation (his legacy was worded such that no inheritance tax is payable).

The judge concluded that Adrian had 'unlawfully killed' Hannah (so the forfeiture rule did apply), but he had done so with 'extreme reluctance…as an act of desperation and as a last resort to which he was driven', causing him 'unimaginable distress'.   She found that Adrian's 'moral culpability…was extremely low, almost as low as any unlawful killer's culpability could have been', such that there would be no criminal prosecution (in line with the CPS's guidance on prosecution for mercy killings).

On this basis, the judge granted full relief from the forfeiture rule and so Adrian's estate, and ultimately the Armiger Foundation, was entitled to benefit from Hannah's estate.

Paul Hewitt and Alexandra Dix represented WitCo in this matter.  

Morris v Morris, Shmuel and White (2024)

Myra Morris died on 5 December 2023 aged 73 at the Pegasos clinic in Liestal, Switzerland, having self-administered an overdose of pentobarbital resulting in her death.

At the time of her death Myra was suffering from Multiple System Atrophy, a rare and degenerative neurological disorder with no known cure.  The coroner recorded that, during the period of two years prior to her death, Myra's condition had deteriorated to the point where she had little enjoyment from life, was in constant pain and found it very difficult to cope.

Myra was assisted both by staff at the clinic and by her husband Philip Morris.  He helped her with the arrangements and travelled with her to Switzerland.

Myra's 9 December 2021 Will left a number of pecuniary legacies to family members, with the residuary estate to Philip and, subject to that, to Myra and Philip's two adult children.

The judgment records that Myra and Philip had a long, happy and loving marriage. Philip is now 76 and was a successful businessman. Myra was a highly intelligent and decisive woman who devoted herself to their family.

As Myra's condition deteriorated, she repeatedly told Philip that she wanted to go to an end-of-life clinic in Switzerland, but that she did not want Philip to get into trouble.   Philip did not agree with this but gradually accepted that it was what Myra wanted as the subject came up again and again.

Philip spoke to the solicitor who drafted his and Myra's Wills and came away from that meeting with a degree of confidence, based on the CPS guidance on assisted dying, it would not be considered in the public interest for him to be prosecuted if he were to give assistance to Myra in fulfilling her wish to end her own life.  Philip was not given any advice in relation to the forfeiture rule, an omission which, when discovered after Myra's death, caused Philip very considerable distress.

The judgment records that Philip sacrificed his own happiness and put himself at risk of prosecution to honour the heartfelt wishes of his wife. It is clear to me that this was not because he wanted her to die, far from it, but rather because he loved and respected his wife too much to disregard her wishes.

Myra visited a solicitor and signed a witness statement describing what she had come to regard as the intolerable nature of her life in graphic detail.  The statement explained that she had a settled wish to travel to Pegasos in Switzerland for an assisted death as soon as practically possible, that she was unable to travel to Switzerland on her own, that she was daunted by the prospect of the journey but that she knew that she was unable to take her own life unassisted.  The statement also recorded that Philip, Jamie and Katie had agreed to accompany her and that it was her strong wish that they should not get into trouble as a result.

Myra's solicitor also prepared a witness statement.  That statement confirmed that when she took instructions for the purpose of preparing Myra's own witness statement, Philip had left the room (without reluctance) and she and Myra were alone together.  The solicitor had no suspicions that any undue influence, pressure or encouragement had been exerted on Myra.  She also confirmed that from a subsequent conversation she had with Philip she found him to be careful and thoughtful and apparently motivated only by compassion in his intent to assist Myra in carrying out her wishes.

Myra travelled to the clinic on 4 December 2023 and took her own life the next day.  Philip and their children were present.

After returning back to England, Philip attended a police station to report his wife's voluntary assisted death.  The police confirmed there was nothing to report.

It was not until February 2024, when Philip was discussing the administration of Myra's estate with his solicitors, that he was first informed about the forfeiture rule.   Philip then made an application for relief from forfeiture.

The Judge granted Philip relief from forfeiture.

The Judge also considered whether the forfeiture rule could apply in respect of Myra and Philip's children as a result of them travelling to Switzerland with their mother.  The Judge confirmed that the act of travelling with someone to Switzerland in the knowledge that they intended to end their own life could be 'assistance' (in the sense of assisting someone to end their life) and engage the forfeiture rule, but he was satisfied that it did not apply here.  Myra's children were not involved in any of the arrangements to end Myra's life and did not encourage it (they actively opposed it, and even when she was in the clinic they tried to persuade her to change her mind) were there solely to comfort her.

Proposed changes to the law

The Assisted Dying Bill – which passed its second reading in the House of Commons on 29 November – will, if it passes into law and comes into force, affect the operation of the forfeiture rule, especially where the Suicide Act 1961 would have applied.  Once the Assisted Dying Bill becomes an Act and a person dies using the methodology set out in that Act, a person assisting that person to die will not be treated as having murdered or otherwise caused their death and therefore the forfeiture rule is unlikely to apply if the deceased has left the person assisting an inheritance.  The person who has assisted in the death could inherit and this might lead to charities, who otherwise would be beneficiaries, losing their inheritance.

How will the Assisted Dying Bill change the law on assisted dying?

The law proposes that terminally ill people are given the right to choose to end their life.

Under the proposals, a person who wishes to end their life must meet all of the following criteria:

• Be over 18 and live in England and Wales;
• Have been registered with a GP for at least 12 months;
• Have the mental capacity to make the choice to end their life;
• Be deemed to have expressed a clear, settled and informed wish to end their life, free from coercion or pressure;
• Have a life expectancy of six months or less;
• Make two separate declarations, signed and witnessed, confirming their settled and informed wish to die;
• Satisfy two independent doctors that they are eligible, with at least one week between each of the two assessments.

A High Court Judge will then have to make an Declaration confirming that the person meets the legislative requirements.  The Judge 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.  

The patient would then have to wait 14 days after the ruling before being assisted to end their life, to allow them a further period of reflection.

Under the proposals a doctor would prepare the substance being used to end the patient's life, and the patient would take the substance themselves.  The Bill does not state which substance would be used.

The Assisted Dying Bill also contains a new Section 2AA Suicide Act 1961, under which there is 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, there is no unlawful killing under the Forfeiture Act – ie forfeiture will not apply in those circumstances.

Assisted Dying Bill - next steps

The Assisted Dying Bill passed its second reading in the House of Commons on 29 November.  It now passes to the committee stage and its third reading.  If it passes these stages, it will go through the same process of three readings and a committee stage and report stage in the House of Lords.  The Bill will then return to the Commons with the Lords' amendments.  If those amendments then pass in the Commons, the Bill will receive Royal assent.  It will still, however, not automatically come into force on Royal assent and this process could take two years to do.

The law on assisted dying will therefore be unlikely to come into force for at least another two years and its provisions may be changed as it progresses through the House of Commons and the House of Lords.

The Government have published a tracker where you can check the progress of the passage of the Bill through Parliament and the Bill in its current form: https://bills.parliament.uk/bills/2875

Top tips

• Charities may not be told that they have lost an inheritance if the executors conclude that the Assisted Dying Act applies to override forfeiture.  Careful checking of any Will which mentions a charity – provided by search agency – is therefore important and, if the effect of Assisted Dying is suspected, examination of the death certificate and other relevant paperwork.
• It is unclear at this stage how public the Assisted Dying paperwork (especially Court declarations) will be.

Q and A

Q.  Has the assisted Dying legislation come into force?

A.  No – see above.  It needs to pass both houses of Parliament and then have as date to come into force- it will be at least 2 years until then.

Q.  What happens in the meantime?

A.  The current Forfeiture rules continue to apply.

Q.  How long will the process for Assisted Dying under the Bill as currently drafted take if someone wants to use it?

A.  This is unknown at present but, as currently drafted, anyone who wants to die under the procedure in the Bill will need to make a Court Application, which could take weeks/months.

Q.  What if people try to use the AD process before the Act is in force? 

A.  Until the new law comes into force, anyone who assists another person to die remains at risk of criminal prosecution and forfeiture.

<< BACK TO HOMEPAGE