Forfeiture and the Law of Succession

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

This project is complete. Our legislative recommendations were implemented by the Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011

There is a rule of law, known as the forfeiture rule, which states that a person may not inherit from someone whom he or she has unlawfully killed. In 2000 the Court of Appeal decided that the forfeiture rule, when applied alongside the rules on intestate succession, disinherits not only the killer, but also the killer’s descendants.

In this project, we considered whether the inheritance rights of descendants should be barred in this way, and reviewed analogous circumstances in inheritance law (both where the deceased dies intestate, and where the estate is inherited under a will) producing similar outcomes. The project did not involve suggesting any changes to the forfeiture rule itself.

The project

This project was referred to us by the Department for Constitutional Affairs, who asked us to review the relationship between the forfeiture and intestacy rules and explore ways in which the law might be reformed to prevent unfairness to potential successors. We were also asked to consider any ancillary areas of succession law that might produce analogous outcomes, for example where a person disclaims (refuses) an inheritance.

We published our consultation paper (Law Commission Consultation Paper No 172) in October 2003 and received 31 responses.

On 27 July 2005, we published our report (Law Com No 295). We recommended that where a potential heir is disqualified from inheriting under the forfeiture rule, or has disclaimed an inheritance, the estate should be distributed as if that person had died.

• Where the deceased was unlawfully killed and does not leave a will, the killer’s share which has been forfeited should pass to the next in line; for example, if a son unlawfully kills his parents, his share in their estates under the intestacy rules should pass to his children, the deceased’s grandchildren.
• Where a will states that money is left “to A, but if they should predecease me, to B”, and A forfeits the inheritance, it should pass to B.
• Where a potential heir disclaims an inheritance (either under a will or on intestacy), it should pass to the person who would have received the money had the first heir died.

The report also recommended removing a small anomaly in intestacy law. If X dies without leaving a will, and an heir such as a child or sibling dies unmarried under the age of 18 but leaves children, the inheritance should pass as though the heir had predeceased X; that is, to the heir’s children who could have inherited directly from X.

Implementation

In 2006 the Government accepted the recommendations made in our report. The Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill was presented to the House of Commons as a Private Members’ Bill on 30 June 2010. The Bill was based on the draft annexed to our Report, with modifications.

The Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011 received Royal Assent on 12 July 2011, and came into force on 1 February 2012.