Assisted dying and the forfeiture rule

There has been significant debate around assisted dying in England and Wales, with the proposed Terminally Ill Adults (End of Life) Bill nearing its final stages.

This bill, if passed, seeks to provide adults with less than six months to live the choice to request assistance to end their own lives (under strict conditions).

This came as a response to numerous recent high-profile cases where this option has been sought by Britons overseas. In fact, British membership of Dignitas, Switzerland’s assisted dying organisation, has risen more than 50% in the last five years. While the Suicide Act 1961 decriminalises the act of suicide, it sets out that it is an offence to “encourage or assist” another to take this step.

This can have implications on a beneficiary’s ability to inherit from an estate, particularly where a friend or family member has helped an individual obtain an assisted suicide. As such, the legal landscape in England and Wales remains uncertain.

The forfeiture rule

The forfeiture rule is a legal principle in England and Wales designed to prevent an individual from benefiting from their own wrongdoing. The Forfeiture Act 1982 regulates this, aiming to prevent persons guilty of unlawful killing from inheritance and other rights.

The case of Leeson v McPherson [2024] clearly demonstrates the ongoing need for this protection: Mr McPherson unlawfully killed his wife, Ms Leeson, while on holiday abroad, which was found to be a financially motivated act. The court enforced the forfeiture rule to prevent him from unjustly benefitting from her estate.

However, the Forfeiture Act 1982 gives courts the power to “modify or exclude” the forfeiture rule where necessary to ensure “the justice of the case”. This assessment is conducted on a case-by-case basis, dependent on the contextual factors of each situation.

The act of assisting someone who is terminally ill to end their life has therefore placed UK courts in a difficult position, particularly due to the emotional and moral complexities of the issue. The courts have sought to provide clarification, evidenced in two recent cases:

1. Morris v Morris [2024]

Phillip, an elderly husband, and his children accompanied his wife, Myra, to a clinic in Switzerland so she could end her life, according to her wishes due to her suffering with a degenerative neurological condition. Myra had drafted a will prior to travelling and solicitors confirmed she had sufficient mental capacity at the time.

The court ruled that Phillip and the children could benefit under the will. It found that Myra had sufficient mental capacity to end her life and, by travelling with her to the clinic, the family did not actively encourage her decision but provided her with comfort and care before she died.

2. The estate of David Peace [2025]

David Peace had terminal motor neurone disease. He drafted a will before attending a Dignitas clinic, leaving his flat to his friend, Tim, who accompanied him to the clinic. Tim’s assistance constituted an offence under Section 2 Suicide Act 1961, triggering the forfeiture rule.

All beneficiaries under the will were adults with sufficient mental capacity and agreed that the flat should still be distributed to Tim. The court confirmed that where all beneficiaries agree to disregard the forfeiture rule, it can be waived without requiring a formal application for relief –saving those involved from having to engage in costly and time-consuming court proceedings.

What does this mean?

For individuals in similar situations:

• Take early advice
• Consider a mental capacity assessment and gather witness statements.

For executors dealing with such estates, to avoid negligent distribution:

• Seek a formal agreement between beneficiaries (where practical) to disregard the forfeiture rule
• Review all gifts made in the last seven years
• Seek advice on the spouse exemption for Inheritance Tax – this can be lost where a spouse has assisted with a suicide/criminal act
• Ensure full compliance with civil and criminal law.

What will happen if the Terminally Ill Adults (End of Life) Bill is passed?

There has been much speculation and debate around the scope of the proposed Bill, whether it goes far enough and how lawful assistance will be defined.

The key points to note are:

• There is expected to be strict criteria to meet: you must have a six-month terminal diagnosis, with sufficient mental capacity assessed by two independent doctors
• You must have been given all other options and show that these have been considered before making an independent, witnessed declaration of your decision
• A new offence of coercion is expected to be created
• Many cases may not meet the criteria of this proposed Bill, meaning assistance could still be considered a criminal act and trigger the forfeiture rule.

Our expert Private Client team can help if you’re faced with an estate where you believe the forfeiture rule may apply.