The Law Commission

 


APPENDIX 2
INTESTACY: FORFEITURE BY A RELATIVE OTHER THAN AN ONLY CHILD

1.     In this Appendix we explain how we believe the intestacy rules currently operate where the intestate is killed by a potential beneficiary other than an only child. We then consider how this position would be affected by our recommendations.

Forfeiture by spouse

2.     It is not altogether certain how the intestacy rules apply when one spouse has killed the other. The strict words of the statute^[1] suggest the following.

(1) It would seem that where the intestate leaves a spouse, but does not leave children, parents, siblings or descendants of children or siblings, the estate becomes bona vacantia. This is because the statutory gifts to grandparents, uncles, aunts etc. are all explicitly limited to the case where the deceased does not leave a spouse.

(2) Where the intestate leaves children, parents, siblings or descendants of children or siblings, it would seem that the personal chattels also become bona vacantia, as the remaining statutory gifts all relate to the "residuary estate (other than the personal chattels)".

(3) The spouse's entitlement to a fixed money sum (£125,000 or £200,000) would seem to disappear altogether, as the legislation expresses it as a charge on the statutory gifts of residue. Thus there is no question of this amount being kept separate and becoming bona vacantia.

(4) The same is true of the spouse's life interest where there are children or other issue, as the gift in remainder is expressed as "subject to such life interest, on the statutory trusts for the issue of the intestate". In other words the interests of the children take immediate effect in accordance with the doctrine of acceleration.

(5) The spouse's absolute interest in half the residue, as provided where the deceased leaves parents or siblings but no children, becomes bona vacantia for the same reasons as the whole estate in case (1).

Forfeiture by one of several children

3.     On the facts of Re DWS (deceased), section 47(2) applied because the killer was the only surviving child of the deceased. Had R been one of several brothers and sisters, it is unclear what would have happened. Certainly section 47(2) would not have had the effect of deeming R to be non-existent, as it only applies where there are no descendants who attain a vested interest. It is uncertain, however, whether the phrase "in trust, in equal shares if more than one, for all or any the children or child of the intestate, living at the death of the intestate", should be read as meaning "equally among all the children capable of attaining an interest". If so, the entire estate is divided among the children other than R, so that in effect the share that R would have taken goes to swell the others. If not, R's putative share remains separate and becomes bona vacantia. Given the literal approach used in Re DWS (deceased), this latter outcome seems more likely.

Forfeiture by a sibling, uncle or aunt

4.     The decision in Re DWS (deceased) turned on the definition of the "statutory trusts" for issue in section 47(1) of the Administration of Estates Act 1925. Under section 47(3) of that Act, the same definition is applied with the necessary changes to the statutory trusts for siblings, aunts and uncles. It follows that, where the deceased has been killed by a brother, sister, uncle or aunt, the descendants of the killer are excluded in the same way as the grandchild in Re DWS (deceased).

5.     Section 47(4) applies where no person attains a vested interest under statutory trusts for a given group of siblings, uncles or aunts. In forfeiture cases, this arises where the killer is the only remaining member of the relevant class, that is:

(1) the only surviving sibling of the whole blood (or where there are no surviving siblings of the whole blood, the only surviving descendant of any sibling of the whole blood);

(2) where there are no surviving siblings of the whole blood, the only surviving sibling of the half blood (or descendant, as before);

(3) the only surviving uncle or aunt of the whole blood (or descendant);

(4) where there are no surviving uncles or aunts of the whole blood, the only surviving uncle or aunt of the half blood (or descendant).

Following Re DWS (deceased), it appears that section 47(4) also applies where the killer is not the only surviving member of the relevant class, but all the others are the killer's descendants.

6.     Where section 47(4) applies, the intestate is deemed to have died leaving no member of the relevant class. The property will therefore go to the next person or class in the list: half-blood siblings, grandparents, full-blood uncles and aunts, half-blood uncles and aunts or the Crown. (This is also implicit in the wording of section 46(1)(v), even without section 47(4).)

7.     Where the killer is one of several siblings, uncles or aunts, section 47(4) does not apply. Nor is the condition "but if no person takes an absolutely vested interest under such trusts"^[2] fulfilled. There is therefore no question of the forfeited share going to the next statutory class, as it might if the killer had been a sole sibling. It is uncertain whether the forfeited share goes to swell the shares of the other members of the class (apart from the killer's own descendants) or becomes bona vacantia, but we believe that the latter is more likely.

Forfeiture by a parent or grandparent

8.     The interest of a parent under an intestacy is not held on a "statutory trust", and section 47(2) does not apply. Nor does section 46(1)(iii) or (iv) or the initial condition of (v) contain any wording about failing to attain an absolutely vested interest. All the interests under section 46(1)(v) are conditional on the deceased leaving no parent, to be understood literally. Accordingly, if the deceased was killed by his only surviving parent, none of these interests takes effect and the estate becomes bona vacantia. If both parents are alive, it would appear that the killer's share becomes bona vacantia rather than going to the other parent, as the gift to the surviving parent in section 46(1)(iv) is conditional on the deceased leaving only one parent.

9.     The same would seem to apply where the deceased was killed by a grandparent. The gift to uncles and aunts (even those not descended from the killer) does not take effect, as it only applies if "there is no member of this class", that is, grandparents.

The view of Sedley LJ

10.     Throughout this Report we have assumed that the majority view in Re DWS (deceased) is correct. On the minority view, as expressed by Sedley LJ, the position would be simpler and more consistent. Every mention of a person failing to attain a vested interest, whether in section 47(2) and (4) or in the conditions in section 46(1), would mean that the person failed to attain such an interest by dying without having attained majority, married or formed a civil partnership. Accordingly, with the possible exception of the spouse's statutory legacy and life interest, all forfeited property would become bona vacantia. In effect, the objective of not allowing potential heirs to profit from their own crime would be achieved by confiscation.

Summary

11.     In brief:

(1) The normal effect of the forfeiture rule is that the forfeited interest becomes bona vacantia and does not go to the next relative in order of priority.

(2) The main exception is where the killer is the only surviving member of a class of beneficiaries under a statutory trust, or where all the other members are the killer's descendants. In these cases section 47(2) or (4) has the effect of deeming the deceased to have died without leaving any members of the relevant class, and the property devolves on the next statutory class.

(3) Where the killer is one of several beneficiaries under a statutory trust, some of whom are not his descendants, the position is uncertain but we believe that the killer's putative share becomes bona vacantia.

Effect of our recommendations

12.     Under our proposed reforms, the property will devolve in exactly the same way as if the killer had predeceased the victim. The order would be the same as that set out in paragraphs 2.7 and 2.8 of the Report. In other words:

(1) Where the killer is a spouse, the property would devolve to the victim's children and grandchildren, followed by their parents.

(2) Where the killer is a parent, the killer's share would pass to the other parent – followed by a sibling, grandparent, aunt or uncle.

(3) Where the killer is a sibling, the sibling's children would take the sibling's share. If the killer has no children, it would be divided equally among the victim's other siblings.

(4) If the killer is a grandparent, their share would be divided between the other surviving grandparents. If there are no other surviving grandparents, the property would pass to any uncles or aunts and their descendants.

(5) If the killer is an uncle or aunt, the killer's share would pass to their children (the victim's cousins). If the killer did not have children, the property would be divided between the victim's other uncles or aunts.

(6) If the killer is a cousin, the killer's share would be divided between the victim's other uncles, aunts and cousins. Only if there are no remaining uncles, aunts or cousins would the property become bona vacantia.

APPENDIX 3
RESPONDENTS TO CONSULTATION PAPER

Academics

Dr S M Cretney

J D Davies

Simon Gardner

Professor P H Kenny

Professor Roger Kerridge

Dr Phil Larkin

Professor J E Martin

Dr Augur Pearce

Peter Smith

Society of Legal Scholars Property and Trusts Section

Practitioners

Judges

Senior District Judge Angel (since retired)

Judge Paul Baker QC

Mr Justice Lloyd (now Lord Justice Lloyd)

Judge Shaun Lyons

Judge Miles McColl

Lord Justice Sedley

Mr Justice Peter Smith

Chief Master Winegarten

The Association of District Judges

Barristers

J H G Sunnucks QC

Solicitors

Christopher Jessel, Farrer & Co

Halliwell Landau (now Halliwells)

David Pollard, Freshfields Bruckhaus Deringer

Wynne Thomas, Dawsons

Philip Wood, Allen & Overy

Government Bodies

Inland Revenue (now H M Revenue and Customs)

Law Reform Committee for Northern Ireland

Non-Governmental Organisations

Bar Council

Law Society

Chancery Bar Association

Individuals

Joanne Bryce

Note 1    Administration of Estates Act 1925 ss 46 and 47.    [Back]

Note 2    Section 46(1)(v), end of the first, second and fourth sub-paragraphs.    [Back]