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

with the likely wishes of the deceased and was concerned that they allowed the
possibility of benefit to the offender, reducing the deterrent effect of the rule.
Others agreed with the result we proposed but thought either that there was no
need to change the law because Re DWS (deceased) was wrongly decided, or
that the same solution could be reached by way of a constructive trust. Yet others
favoured a statutory discretion or forfeiture to the State. We address these
arguments in turn.
Arguments for no change
The family property point
3.15 The Society of Legal Scholars commented that the Consultation Paper seemed
to contain an expectation akin to the concept of family property found in
Continental Europe; that of a fixed chain of successive descents which should not
be compromised by the vagaries of any individual link. On a more individualistic
concept of property, as found in English law, there is no injustice in the bare fact
of the grandchildren not inheriting from the grandparent because of the crime of
their parent, as they had no pre-existing right to inherit. It is the same sort of
consequence as their not inheriting because the parent received and then lost the
property in some other way. 63
3.16 We consider that this argument is based on a misunderstanding of the reason for
our proposal. The proposal does not attempt to duplicate what would have
happened if the parent had inherited and then died leaving the property to the
grandchildren. The reasoning is quite different: it is that once the parent is
eliminated from the equation, there is no reason why the grandchildren should
not take their normal place in the order of succession from the grandparent. In
other words, grandchildren should be treated as relatives in their own right, rather
than as mere stand-ins for their parents.
The wishes of the deceased
3.17 We argue above 64 that, in most situations, the deceased would prefer to benefit
grandchildren than siblings, whether the child dies or is disqualified for some
technical reason. The question arises whether the forfeiture situation is an
exception to this generalisation. Chief Master Winegarten argued that, if asked
specifically about what should happen in the event of their murder by a family
member, most people would want to exclude the killer’s family as well as the killer
from any benefit. This kind of question cannot be taken much further by reasoned
analysis, being largely a question of public opinion. Our proposals received some
63 See para 3.4 above. It should be noted that the Society does not use this argument to
defend the existing rule: it argues that the logical answer is forfeiture to the State, though it
does not suggest this as a practical reform.
64 Para 3.13 above.
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