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Inheriting the Sins of the Father

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Under the common law ‘forfeiture rule’ a person who unlawfully kills another or aids and abets suicide will forfeit any benefit that he or she would have received from the estate of the deceased.  In these circumstances, it may be expected that if a person is disqualified for murder, the benefit that they may have obtained under the deceased’s estate would pass to the children of the killer or assister.  However, under current law, the estate will pass to the deceased’s other relatives.  These consequences follow from the Court of Appeal’s decision in Re DWS (Deceased) [2001] Ch 568 (CA).  In Re DWS (Deceased), the son murdered both his parents, both of whom died intestate.  The Court of Appeal (“the Court”) held that in this instance both the murderer and his child were excluded from inheriting.  The decision was not based on public policy but instead was a result of the operation of law.

The Court held that under section 47 (1) (i) of the Administration of Estates Act 1925 (“the Act”), the son’s entitlement could only arise if his father had pre-deceased his parents. In light of this the Court then had to consider who was entitled to the estate.  Section 47 (2) of the Act provides that, if the statutory trusts for issue fail because none of the issue attains a vested interest, then the estate is to be distributed as if the deceased had died without issue.  The majority held that the sub section covered a failure to attain an interest for whatever reason, including disqualification because of the forfeiture rule.  It was therefore decided that in this case it should be held that the deceased had died without issue.  The result being that the estate passed to the deceased’s sister.

The application of the Intestacy Rules in Re DWS has been criticised as being inconsistent and arbitrary.  The Intestacy Rules are intended to arrange the relatives of the deceased in order of priority.  In normal circumstances where a child of the deceased has died, the deceased’s grandchildren would inherit ahead of other relatives.  It is therefore odd that the same approach is not followed when the child is not dead but disqualified by operation of the forfeiture rule.

To address these inconsistencies the new Civil Law Reform Bill (“the Bill”) recommends a change in the current law.  The Bill would introduce a ‘deemed predecease’ rule, which would treat a person who forfeits as having died before the deceased.  This would ensure that, where a child forfeits his or her children (the grandchildren of the deceased) would still stand to inherit.  With the recent change in government it remains to be seen if the draft Bill and its changes will ever be implemented, the position at present is therefore that the child of a murderer will continue to inherit the sins of the father.

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