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

satisfactory solution intellectually, but did not attempt to argue for it on the
grounds of practical benefit. The bona vacantia section at the Treasury Solicitor’s
office, and the solicitors representing the Duchies of Lancaster and Cornwall,
were strongly against any extension of their responsibilities.
3.30 While this solution avoids the delay and expense of a court-based discretion, the
other two objections to a discretionary system, namely uncertainty and acrimony,
remain. The existing intestacy legislation states that, when the Crown receives
property as bona vacantia, it may provide “in accordance with the existing
practice” for the dependants of the deceased and other persons for whom he
might have been expected to provide. 75 If a new category of bona vacantia were
introduced by statute, there would by definition be no “existing practice” to follow.
Both the grandchildren and the collaterals might equally consider that they had
the preferable moral claim, and feel aggrieved if the exercise of the Crown’s
discretion went against them.
3.31 We do not think the profits from drug dealing provide an analogy. The profits from
drug dealing have no legitimate owner. By contrast, an inheritance was the
property of the deceased until the moment of their death. It should, as far as
possible, be distributed in accordance with the deceased’s wishes (or such
approximation to their wishes as is provided for in the normal hierarchy laid down
in the intestacy legislation). Intestacy law presumes that in normal circumstances
most people would prefer their estate to pass to their relatives than to the State.
The same should apply here. The responses to consultation did not suggest that
there was any professional or public feeling that the existing law of forfeiture was
not punitive enough and would be improved by extending the excluded class to
cover the entire body of relatives.
CONCLUSION
Deemed predecease rule
3.32 In conclusion, we consider that the “statutory deemed predecease” solution, as
proposed by the Consultation Paper, is the way forward, and most of the
responses support it.
3.33 We recommend that there should be a statutory rule that, where a person
forfeits the right to inherit from an intestate through having killed that
intestate, the rules of intestate succession, as laid down in sections 46 and
47 of the Administration of Estates Act 1925 (as amended), should be
applied as if the killer had died immediately before the intestate.
Special arrangements for minors
3.34 As mentioned above, there is some concern that our reforms in forfeiture cases
will lead to property being held for minor children of the killer, and that this may
indirectly benefit the killer. 76 Professor Jill Martin, in her response to consultation,
75 Administration of Estates Act 1925, s 46(1)(vi) second paragraph.
76 Para 3.18 above.
23