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Published On: January 18, 2016 | Blog | 0 comments

Forfeiting it all

It is putting it mildly to say that a person claiming relief from the Forfeiture Rule is throwing themselves on the mercy of the Court, whilst risking it all in costs.  It’s a serious gamble. One that didn’t pay off for Ian Henderson in Henderson v Wilcox [2015] EWHC 3469.

Ian Henderson who suffered from mental health problems killed his mother. He was convicted of manslaughter. As a consequence of the Forfeiture Rule he is not entitled to inherit his mother’s estate of around £150,000. For an explanation of the Forfeiture Rule please see my blog from last year, Crime and Punishment and Forfeiture

Ian mother’s property was excluded from her estate because before she died she had transferred it into a discretionary trust for her, Ian and her nephew. The Court held that Ian was still entitled to the benefit of the trust, despite the unlawful killing of his mother. The Court followed Dunbar v Plant. Where the beneficiary (Ian) had a pre-existing interest under a trust, the interest merely becomes enforceable on the death – it is not created by the death. Contrast this to a benefit under a will or intestacy, where the beneficiary’s interest does not actually come into existence until death. The Forfeiture Rule only applies to the latter case. It does not affect pre-existing trust interests so Ian remained entitled to the trust property.

In weighing up whether justice required the Forfeiture Rule to be modified the Court could consider the relationship between Ian and his mother; the degree of moral culpability; the nature and gravity of the offence; the intentions of the deceased; and the size and value of the estate.

Whilst it was found that his mother would have wanted Ian to benefit, and Ian had a need for the money, these factors did not outweigh the gravity of the offence and Ian’s moral culpability. Ian’s mental health condition had not been clearly identified though he was found to have low IQ. He did not plead diminished responsibility and the Court held that he knew and understood his actions when he caused very grave injury to his mother over a sustained period of time, which ultimately led to her death.

Ian has retained his trust interest, but lost his claim under section 2 Forfeiture Act 1982 and will probably suffer the consequences in terms of legal costs. The Court has extremely wide discretion in these cases and this is another case in a line with Chadwick where relief has been denied. 

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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