The Forfeiture Rule and the Law of Succession ... - Law Commission

PART 3
FORFEITURE ON INTESTACY
SUMMARY OF THE ISSUES
3.1 The main questions raised by the Consultation Paper are these:
(1) Should there be a statute introducing a “deemed predecease” rule in the
forfeiture/intestacy case?
(2) Should the same treatment be extended to other situations, such as
those concerning disclaimer, wills, attestation or settlements?
We discuss question (1) in this Part and question (2) in Part 4.
CRITICISMS OF THE EXISTING LAW
3.2 The Consultation Paper identifies three possible criticisms of the present rule as
found in Re DWS (deceased). These are:
(1) The present rule appears to punish children for the crimes of their
parents.
(2) The present rule is inconsistent, in that there is an arbitrary distinction
between the case where the child of the deceased dies and the case
where that child becomes ineligible to inherit for another reason.
(3) The present rule is unlikely to represent what the deceased would have
wanted.
Punishing children for the crimes of the parents
3.3 The immediate intuitive response to the result of Re DWS (deceased) is that it is
unfair on the grandchildren, who have been permanently deprived of their
prospects of inheritance through no fault of their own. There are however two
counter-arguments.
3.4 First, the grandchildren have not been deprived of any vested interest. Forfeiture
is in any case a sort of punishment. Whenever an offender has been fined or had
property confiscated as a punishment, this has an indirect effect on any potential
heirs because the offender’s estate is that much less valuable, but no one
regards this as unfair. 58
3.5 Secondly, neither the law as it stands nor the proposed “deemed predecease”
rule really puts the grandchildren in the same position as if the offence had not
been committed. The deemed predecease rule is based, not on the
grandchildren’s position among the heirs of the killer, but on their position among
58 However, the same result follows in disclaimer cases, and here this counter-argument is
not available, as there is no flavour of punishing anyone.
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