The recent case of Ninian v Findlay & Ors [2019] EWCH 297 (Ch) is a landmark decision in the law relating to forfeiture and assisted suicide in the context of contesting a will.
The well-established forfeiture rule provides that if a person unlawfully kills another, they are not able to inherit from their estate. Dunbar v Plant [1998] Ch 412 is the existing legal authority, and in this case, it was held that the forfeiture rule applies to assisted suicide cases, as assisted suicide is a crime under section 2 of the Suicide Act 1961.
Forfeiture Act
In this case, Mrs Sarah Ninian made an application under section 2 of the Forfeiture Act 1982, to have the rule excluded. This section allows the court to make an order to modify or exclude the rule if it is satisfied “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…”
Mrs Ninian was married to Alex who, at 84, was sadly was diagnosed with Progressive Supra-nuclear Palsy (“PSP”) in 2013, a progressive, incurable disease causing difficulties with balance, movement, vision, speech and swallowing. He was described as a successful businessman, intelligent, decisive and fiercely independent.
Mr Ninian made arrangements to end his life through an assisted suicide clinic in Switzerland in 2017. Both Mr and Mrs Ninian sought independent legal advice in respect of his decision. He was deemed to have the requisite mental capacity to make decisions about his medical condition and treatment options, and he was also deemed to have testamentary capacity. Mrs Ninian was initially against it but ultimately decided to respect her husband’s wishes and the couple travelled together. While Mrs Ninian helped him to attend the clinic she did not provide any assistance in the actual life-ending procedure. She then reported the matter to the police. The police took the decision, not to prosecute, deeming it not to be in the public interest; it was a compassionate rather than malicious act, and this is a helpful differentiation.
The decision
The court held that while she did not specially carry out an act which assisted the suicide, she did assist with the administration and travel, such that, without her involvement, her husband would not have been able to attend the clinic and so, an offence had been committed, and the forfeiture rule applied. The court went on to consider whether or not it should apply its discretion in order to modify or exclude the effect under S2. The court felt that this was a compelling case to grant relief. The decision of the police not to prosecute was an important factor. They had been married for 34 years, and the evidence suggested a strong and loving relationship; he had a strong independent will and retained capacity, and he recorded his intentions clearly; they had taken advice, and she had not committed any act other than to assist. Her brothers would have benefited from the estate had the forfeiture rule applied and they, in fact, supported her application for relief.
Emotive issue
The decision is likely to be controversial as assisted suicide is such an emotive issue, and the legalisation of it is never far from the headlines. In the context of the forfeiture rule, it is an interesting, and arguably welcome, development and one which, given an increasingly ageing population and advances in medical treatment prolonging life, is likely to become more and more relevant. The forfeiture rule still does have its place to ensure there is no financial incentive to suicide and each case will turn on its own facts but the judge in this case even went as far as to say: “On one view, although not a course of action the court can endorse, she did what many persons would do for a loved one”.
