The Law Commission

 


The Law Commission
Consultation Paper No 172

THE FORFEITURE RULE AND THE LAW OF SUCCESSION

A Consultation Paper

London: TSO

The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Honourable Mr Justice Toulson, Chairman
Professor Hugh Beale QC
Mr Stuart Bridge
Professor Martin Partington CBE
Judge Alan Wilkie QC

The Chief Executive of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.

This consultation paper, completed on 30 September 2003, is circulated for comment and criticism only. It does not represent the final views of the Law Commission.

The Law Commission would be grateful for comments on this consultation paper before 23 January 2004. Comments may be sent either –

By post to:

Simon Tabbush
Law Commission
Conquest House
37-38 John Street
Theobalds Road
London
WC1N 2BQ

Tel: 020-7453-1257
Fax: 020-7453-1297

By e-mail to:

simon.tabbush@lawcommission.gsi.gov.uk

It would be helpful if, where possible, comments sent by post could also be sent on disk, or by e-mail to the above address, in any commonly used format.

Any request to treat all, or part, of a response in confidence will, of course, be respected, but if no such request is made the Law Commission will assume that the response may be quoted or referred to in subsequent publications or made available to third parties.

The text of this consultation paper is available on the Internet at:

http://www.lawcom.gov.uk

CONTENTS

	Paragraph
SUMMARY	S1
A recent case	S3
Problems with the current law	S6
Our provisional proposals	S7
PART I: INTRODUCTION	1.1
The problem	1.3
Analogous situations	1.5
Provisional proposals	1.8
The review process	1.10
PART II: FORFEITURE AND THE LAW OF INTESTACY	2.1
The forfeiture rule	2.1
The problem considered here	2.5
The intestacy provisions	2.6
The decision in Re DWS (dec'd)	2.7
Facts	2.7
The decision	2.10
Further consequences	2.13
Why the current law was felt to be unsatisfactory	2.14
The ECHR case	2.15
PART III: DOES THE PROBLEM APPLY MORE WIDELY?	3.1
Disclaimer on intestacy	3.2
Wills with substitutionary gifts	3.3
Other areas	3.9
Summary	3.11
PART IV: WHAT DO OTHER COUNTRIES DO?	4.1
France	4.2
Italy	4.5
United States	4.6
Scotland	4.8
PART V: THE POLICY ARGUMENTS	5.1
Intestacy	5.2
Forfeiture	5.2
Arguments for allowing the grandchild or other contingent beneficiary to inherit	5.2
Arguments against allowing the grandchild or other contingent beneficiary to inherit	5.15
Disclaimer	5.24
Wills	5.30
Forfeiture	5.30
Disclaimer of legacy	5.38
Attestation of will by beneficiary	5.39
Lifetime settlements	5.43
Conclusion	5.45
PART VI: POSSIBLE SOLUTIONS	6.1
Intestacy	6.1
Forfeiture	6.1
Deemed predecease rule	6.2
Discretionary power	6.8
Conclusion on forfeiture	6.16
Disclaimer	6.18
Wills	6.23
PART VII: SUMMARY OF PROVISIONAL PROPOSALS	7.1
Intestacy	7.1
Wills	7.6
General	7.10
APPENDIX: THE INTESTACY PROVISIONS	Appendix
Administration of Estates Act 1925