The forfeiture principle aligns with the established legal maxim that individuals cannot benefit from their illegal actions. The principle was first articulated in the 1891 ruling by the English Court of Appeal in Cleaver v Mutual Reserve Fund Life Association (Cleaver) [1892] 1 QB 147.

In Cleaver, the Court determined that a woman who had been found guilty of murdering her spouse was ineligible to receive the benefits from her husband’s insurance policy.

Lord Esher MR stated that

‘[t]he rule of public policy in such a case prevents the person guilty of the death of the insured, or any person claiming through such person, from taking the money’—

[1892] 1 QB 147 at 155.

Lord Justice Fry agreed:

It appears to me that no system of jurisprudence can, with reason, include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person—

1 [1892] 1 QB 147 at 156. 

The Forfeiture Act 1982 prohibits individuals who unlawfully cause another person’s death from receiving any benefits from that individual, including inheritance, jointly owned assets, or life insurance payouts. The forfeiture rule also applies to those who assisted or encouraged the act, even in cases of assisted suicide.

Section 2(2) of the Forfeiture Act 1982 provides the Court with a test for discretion 

“(2) The court shall not make an order under this section modifying or excluding the effect of the forfeiture rule in any case unless it is satisfied that, having regard to the conduct of the offender and of the deceased and to such other circumstances as appear to the court to be material, the justice of the case requires the effect of the rule to be so modified or excluded in that case.”

The core principle is that it is unjust for someone to benefit from taking a life. However, the Court can alter this rule at its discretion under specific circumstances, considering the offender and deceased’s actions, their relationship, the deceased’s intentions, the estate’s size, and the offender’s moral culpability.

A Will is only valid under S9 Wills Act 1837 if:

“1.it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

2. It appears that the testator intended by his signature to give effect to the Will and

3. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

4. each witness either—

(i)attests and signs the Will; or

(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”

Under s20 of the Administration of Justice Act 1982, the court can rectify an error in a will.

“If a court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence—

1. of a clerical error; or

2. of a failure to understand his instructions,

It may order that the will be rectified to carry out his intentions.”

Interpretation – General Principals

The general principles of Will interpretation are established in Marley v Rawlings [2015] AC 129. 

“When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions.”

at [19]-[22]

The approach should be the same when interpreting Wills. Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context.

Of course, a contract is agreed between a number of parties, whereas a single party makes a Will. However, that distinction is an unconvincing reason for adopting a different approach in principle to interpretation of wills:

“it is merely one of the contextual circumstances which has to be borne in mind when interpreting the document concerned.”

In Marley v Rawlings [2011] EWHC 161 (Ch), Ch D Proudman J refused to probate a document as the validly executed Will of Alfred Rawlings (“the Will”). On its face, this document appeared to be his late Wife’s Will.

On May 17, 1999, Alfred and Maureen Rawlings met with their lawyer at home to finalise their identical Wills. Each Will bequeathed the entire estate to the other, and if the other did not survive for one calendar month, the estate would go to Terry Marley, who they considered as their son.

If it was valid, Mr Marley was the residuary beneficiary under the his wife’s Will, whereas the two sons of Mr and Mrs Rawlings (“the respondents”) would have inherited on an intestacy. 

In Marley v Rawlings and another [2014] UKSC 2, the appellant’s case was based on three separate arguments.

  • that Mr Rawlings’s Will should be understood, in essence, as if it were the document his wife signed on 17 May 1999.
  • that Mr Rawlings’s level of awareness and consent regarding Will’s contents was sufficient to validate it, even with some omissions.
  • that the Court should amend the Will to reflect Mr. Rawlings’s true intentions.

The issue which occurred in Marley v Rawlings (Costs) [2014] UKSC [51] is how the Court should allocate the costs of the proceedings. Mr Marley’s primary contention is that the respondents should pay the costs of the proceedings, including the two appeals, and have to pay their costs.

The respondents, on the other hand, contend that the costs of Mr Marley and the respondents should be paid out of the late Mr Rawlings’s estate, or, in the alternative, that those costs should be ordered to be paid by the Solicitor, as he was responsible for the unfortunate error.

The Solicitor is insured against such liabilities; the insurers have also submitted costs and contend that the respondents should pay Mr Marley’s costs. 

The Court accepted the submissions on the understanding that the value of Mr Rawlings’ estate (“the estate”) is in the region of £70,000. Lord Neuberger explained that courts seek to determine the testator’s intention by interpreting the relevant words in light of 

  • (i)their natural and ordinary meaning
  • (ii) the overall purpose of the document
  • (iii) other provisions within the document
  • (iv) the facts known or assumed at the time of execution, and 
  • (v) common sense while disregarding any subjective evidence of intent at [19]

Disclaimer

A disclaimer is a refusal to accept an inheritance: Re Scott (deceased); Widdows v Friends of the Clergy Corporation [1975] 1. WLR 1260 at 1271 (Walton J)

“The effect of a disclaimer is not to throw the property on to the scrap heap, but to refuse to accept it in the first place, leaving the ownership with the people or the interest or the estate or whatever, from which it was derived in the first place.”

At common law, a disclaimer does not destroy the property but instead results in the interest remaining with its source. Without a substitutionary clause, a disclaimed gift passes under intestacy rules. However, this position was altered by s33A of the Wills Act 1837, introduced by s2 of the Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011. Section 33A states that when a beneficiary disclaims a gift, they are considered to have died immediately before the testator unless the Will indicates otherwise.

A similar amendment was made to intestacy rules under s46A of the Administration of Estates Act 1925, that considers a person who disclaims an intestate share to have predeceased the deceased.

Background and Law Commission Report

The amendments stemmed from the Law Commission Report No. 295 (July 2005), which examined issues arising from the forfeiture and intestacy rules, particularly Re DWS (deceased) [2001] Ch 568 (CA). In DWS, the Court barred a man who killed his parents from inheriting under the forfeiture rule. The Court of Appeal ruled that this exclusion also extended to his son, redirecting the inheritance to more distant relatives under intestacy rules.

The Law Commission of England and Wales criticised Re DWS (deceased) for unfairly punishing the descendants of an unlawful killer, mainly as it is likely that the victims in that case may have preferred their grandchild to inherit.

The exclusion of the unlawful killer’s descendants also produces an arbitrary distinction between the rights of the children of an illegal killer and the children of other relatives. This outcome may be inconsistent with the general policy of intestacy law, which gives preference to descendants over siblings and other relatives.

The Law Commission recommended a statutory rule treating a killer as if they had died before the deceased for both testate and intestate estates unless the Will indicated otherwise. This principle was then extended to disclaimers so that a disclaimed inheritance would pass as if the disclaiming beneficiary had predeceased the testator.

Interpretation Issues

The wording of section 33A of the Wills Act 1837, enacted as per the draft Bill annexed to the Report, was intended to implement this rule. However, the editors of Williams on Wills argue that s33A only applies to s 33 of the Act, which deals with gifts to children and remoter descendants who predecease the testator. They contend that the provision does not apply to all disclaimers, possibly due to a drafting error or a misunderstanding of the Wills Act 1837.

In Macmillan Cancer Support v Hayes [2017] EWHC 3110 (Ch), [2018] WTLR 243, the Court suggested that the Act might require a statutory rectification. Peter Thomson unlawfully killed his wife Sheila before taking his own life. They had discussed ending their lives together due to Peter’s health issues and Sheila’s advanced dementia, which left her unable to consent. Peter left a letter detailing their agreement and circumstances.

Sheila’s Will stipulated that her estate would go to Peter only if he survived her, which he did. However, due to the forfeiture rule, he was ineligible to inherit. Her estate went to distant relatives instead of intended charities and friends.

The Court considered the circumstances, including Peter’s premeditated actions, Sheila’s incapacity, and their loving relationship. Judge Mark Raeside QC granted relief from the forfeiture rule, allowing Sheila’s wishes to be honoured through Peter’s Will. The Court considered his actions caring and without selfish intent.

Additionally, the charity sought relief under section 33A of the Wills Act 1837, which addressed forfeiture situations. Still, the court noted that its effectiveness may not fully reflect the Law Commission’s intentions.

Section 33 of the Wills Act 1837 provides that:

  • 1. If a will gifts property to a child or remoter descendant who predeceases the testator, the gift passes to that beneficiary’s living issue.
  • 2. If a will makes a gift to a class of the testator’s descendants, and one class member predeceases the testator, their share passes to their living issue.

Section 33 does not affect express substitution clauses in Wills. Suppose the phrase for this Act in s33A is limited to s33. In that case, s33A does not override substitution clauses or apply generally to disclaimers contrary to the Law Commission’s intent.

Disclaiming Beneficiaries 

White v Williams [2025] EWHC 115 (Ch) concerns a Part 8 claim seeking directions on the distribution of the estate of Elfed Williams (the deceased), who passed away on 11 June 2023, leaving a Will dated 31 March 2014 (the Will).

The claimant, David Leslie White, is the sole executor of the Will and was granted probate on 6 October 2023. The net value of the estate is £393,974. The defendant, Keith Elfed Williams (Keith), is the deceased’s son and a beneficiary under the Will.

  • Clause 4 of the Will provides for pecuniary legacies totalling £20,000.
  • Clauses 5 and 6 establish a trust over the residuary estate, dividing it into six equal shares among the named beneficiaries, including Keith. Suppose any beneficiary predeceases the deceased; their share passes to their surviving children, if any.
  • Clause 6(b) further provides that if a trust under Clause 6(a) fails, the share in question accrues to the remaining beneficiaries.

Keith was estranged from the deceased and repeatedly indicated he did not wish to accept his one-sixth share of the residuary estate, valued at over £60,000. He has no children. Despite receiving a Notice of Disclaimer from the claimant’s solicitors on 13 November 2023, he has not signed or returned it.

The plaintiff initiated the claim on 22 January 2024. Keith has not acknowledged service or responded. On 29 May 2024, the court found that Keith’s conduct demonstrated an intention to disclaim his entitlement under the Will.

Raising the issue of how Keith’s share should devolve:

  • 1. Among the remaining five beneficiaries under Clause 6 of the Will or
  • 2. Should it pass under partial intestacy to the deceased intestacy beneficiaries?

The outcome depends on whether the word failure in Clause 6(b) includes a disclaimer. If it does, distribute Keith’s share among the remaining beneficiaries under the Will. If not, it would pass on intestacy to the legislated beneficiaries.

The claimant’s inquiries identified the intestacy beneficiaries as:

  • 1. Lorna Davies (the deceased’s niece, daughter of Frances Williams);
  • 2. Eirwen Hill (the deceased’s sister); and
  • 3. Marsden Williams (the deceased’s brother).

Two individuals (Hill and Marsden Williams) are also beneficiaries under Clause 6 but would receive a larger share (one-third instead of one-fifth) if Keith’s share passed under intestacy. They have indicated they maintain an entitlement as intestacy beneficiaries, with Ms Hill arguing that Clause 6(b) does not apply to disclaimers.

On 29 May 2024, the court directed the claimant to notify the beneficiaries on intestacy and serve them with relevant documents, including the claim form, evidence, and a draft order completed in October 2024. The beneficiaries have filed an acknowledgment of service.

This analysis considers the scenario where Keith predeceased the testator.

The term lapse refers to the failure of a testamentary gift when the intended beneficiary dies before the testator. In such cases, unless the Will specifies otherwise, the lapsed share of the residue is distributed according to intestacy rules. However, a Will can include provisions that redirect a deceased beneficiary’s share to another person or persons.

Scope of Section 33A of the Wills Act 1837

It is unnecessary to determine whether s 33A(2) applies universally in interpreting a Will or if it requires statutory rectification.

This case involves two explicit substitution clauses: clauses 6(a)(v) and 6(b) of the Will.

Analysis and Conclusions

If Keith does not predecease the testator, his disclaimer leads to partial intestacy concerning his share unless the Will provides otherwise. Clause 6(b) states that if the trusts in clause 6(a) fail, the failed share accrues to the other shares. The term “fails” can be interpreted to include a disclaimer, even if it occurs after the testator’s death. Therefore, Keith’s disclaimed gift fails to activate the substitution provisions in clause 6(b).

Conversely, if Keith predeceased the testator and had no children, the substitutionary gift to his children would also fail under clause 6(b). Consequently, clause 6(b) would distribute his share among the other residuary beneficiaries.

The Court ordered that Keith’s one-sixth share of the deceased’s residuary estate be divided among the other beneficiaries named in clause 6(a) of the Will.

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