The cost of an unlawful killing – the forfeiture rule in probate

We have all heard the phrase “crime doesn’t pay”, and this is almost certainly the case when we consider the application of the forfeiture rule in probate.

The basic principle of forfeiture in this context is if a person unlawfully kills another – i.e., murder, they forfeit any entitlement to inherit from the deceased’s estate.

The principle of forfeiture was first considered in Cleaver v Mutual Reserve Fund Life Association 1892. The court ruled that a person who unlawfully kills another is not entitled to receive any benefit because of the deceased’s death.

The rule is now found in the Forfeiture Act 1892, s.1(1). This is essentially a rule of public policy which, in certain circumstances, precludes a person who has unlawfully killed another from acquiring benefit from the killing.

Thankfully, cases do not frequently trouble the courts but the recent case of Leeson and Leeson v McPherson [2024] EWHC 2277 (Ch) is interesting as the court was invited to apply forfeiture in circumstances where the defendant had been acquitted of the deceased’s murder.

The relevant facts were that Paula Leeson died on 6 June 2017 in the swimming pool of a Danish holiday cottage where she was staying with her husband Donald McPherson. Donald was charged with Paula’s murder but acquitted following a submission of no case to answer.

Despite the collapse of the criminal prosecution, Paula’s son Ben Leeson and her father William Leeson, commenced civil proceedings against her husband, and sought – among other remedies – a declaration that Donald had unlawfully killed Paula and so had lost any right to benefit from Paula’s estate or their jointly held assets: the forfeiture claim.

In a criminal prosecution, to be guilty of murder then the threshold is that of beyond reasonable doubt. In a civil context it is the lesser threshold of the balance of probabilities.

Based on the evidence available, which included evidence of Donald misleading both the Danish and Greater Manchester police, evidence from Paula’s Fitbit watch which discredited her husband’s account, the judge had no hesitation in concluding that Donald had unlawfully killed Paula in Denmark.

The full text of the judgement is interesting as the court was informed Donald had, prior to Paula’s death, secured various insurance policies against her life, without her knowledge. Donald’s financial situation was precarious; the court finding he had constructed a plan to obtain the life policies and then kill Paula.

The forfeiture claim succeeded and so Donald will receive no benefit from Paula’s estate or the policies. Other claims pursued to remove him as a trustee and Paula’s will be set aside, as one of the witnesses’ signatures had been forged, were also successful.

Thankfully we advise on these types of cases on a fairly infrequent basis. However, the importance of the forfeiture rule cannot be understated, ensuring as best it can that those who unlawfully kill another do not benefit from their actions.