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

(2) the successor then holds it on constructive trust for the person who
would have been the successor if the killer had predeceased the victim. 69
3.23 After considerable thought we concluded that this was not the answer, for three
reasons.
(1) The process of administration of estates in England and Wales does not
normally admit of a constructive trust arising, as no legal title can vest in
the killer unless the property has been distributed in ignorance of the
facts and the killing is discovered at a later stage.
(2) Even if forfeiture does operate by way of constructive trust, it is not clear
why this should imply a deemed predecease (or any other) rule. Where
property is distributed to the wrong beneficiary, a constructive trust arises
in favour of the right beneficiary; but the constructive trust is not in itself
the reason for a given person being the right or wrong beneficiary.
(3) Whatever the theoretical force of the argument, there can be no
reasonable certainty that a suitable case will reach the House of Lords or
that, if it does so, the House of Lords will adopt the constructive trust
analysis in the desired form.
3.24 Peter Smith, of Reading University, suggested a statutory solution based on the
concept of a constructive trust. 70 This trust would normally be in favour of the
person identified by the “deemed predecease” rule, but there would be flexibility
for special cases. As with Professor Kerridge’s argument, we are not convinced
that the fact of a constructive trust would either imply a “deemed predecease”
rule or contain that flexibility (even if flexibility is desired: see the next few
paragraphs).
Discretion to depart from the deemed predecease rule
3.25 The Consultation Paper raised the possibility of a statutory discretion, possibly on
the lines of the Inheritance (Provision for Family and Dependants) Act 1975.
However, it advised against pursuing this option, for three main reasons: 71
(1) A discretionary power is liable to generate litigation, causing delay and
expense.
(2) In the present context, it is hard to envisage guidelines for the exercise of
the discretion, so the results will be unpredictable.
69 This explanation has been widely accepted in Commonwealth and US jurisdictions, and
had some academic support in England before the cases of Re Jones decd [1998] 1 FLR
246 and Re DWS decd. For more detail, see Professor Kerridge’s argument in the article
cited in the previous footnote.
70
“The equitable maxim of the common law” (2004) 18 Trust Law International 194, and in
his response to consultation.
71 CP paras 6.8 to 6.15.
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