Morris v Morris [2024] EWHC 2554 (Ch)
ICLR
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below. For full details, see their index card for this case.
Public policy— Administration of estates— Suicide— Claimant assisting terminally ill wife in travelling to assisted dying clinic in Switzerland— Wife accompanied to clinic by adult children and sister— Police finding no grounds for further investigation into claimant’s actions and no public interest in prosecution— Claimant’s assistance in wife’s suicide sufficient to engage forfeiture rule precluding acquisition of beneficial interest under wife’s will— Whether statutory modification of forfeiture rule appropriate— Whether actions of children and sister also engaging forfeiture rule— Approach to determining whether necessary parties joined to proceedings in assisted dying cases— Forfeiture Act 1982 (c 34), s 1, 2(1)(2) — Suicide Act 1961 (9 & 10 Eliz 2, c 60), s 2(1)
The claimant helped his wife, who was suffering from a degenerative neurological disorder with no known cure, to travel to an assisted dying clinic in Switzerland, where she ended her life. The couple were accompanied to the clinic by her sister as well as their two adult children, who were present at her death. Upon their return to the UK, the claimant reported the circumstances of his wife’s death to the police, but no action was taken against him. Nevertheless, where the claimant’s assistance in his wife’s suicide and intention behind it was sufficient to qualify as an offence under section 2(1) of the Suicide Act 1961, the forfeiture rule as defined in section 1 of the Forfeiture Act 1982 applied to disable him from taking absolute beneficial interest in his wife’s residuary estate, as prescribed under her will. The claimant commenced proceedings, seeking modification of the forfeiture rule under section 2(1) of the 1982 Act. In so doing, he received the full support of his wife’s sister, who had been left a pecuniary legacy under the will, and his children, the latter being joined to proceedings as the first and second defendants as next in line to inherit under the will. When the papers were first considered by the Court, a further issue arose as to whether, having accompanied the couple to Switzerland, the sister and children’s interests under the will also engaged the forfeiture rule. In the event that all of their interests were forfeit, the claimant applied for the appointment of a solicitor as the third defendant to proceedings, to represent the interests of any individual who had an interest in his wife’s estate.
On the claim and application—
Held, claim allowed and application granted. (1) Proper exercise of the power to grant relief from the forfeiture rule under section 2(1) was directly linked to whether the public interest required imposition of a penal sanction. As there had been no formal determination of that by the Crown Prosecution Service in this case, the court was required to consider for itself the published public interest factors which tended in favour of and against prosecution in cases of encouraging or assisting suicide. There was also a range of other factors which the court was entitled to consider, including the conduct of the assistant and the deceased: the relationship between them; the degree of moral culpability for what had happened; the nature and gravity of the offence; the intentions of the deceased; the size of the estate and the value of any property in dispute; the financial position of the assistant; and the moral claims and wishes of those who would be entitled to take the property if the forfeiture rule continued to apply. On the evidence before the court, none of the 16 public interest factors tending in favour of prosecution had been satisfied, but all of the factors tending against prosecution had, and consideration of the other factors all pointed in favour of the granting the relief sought. Accordingly, the claimant had made a clear and compelling case for an order modifying the forfeiture rule to be made, excluding its application in full (paras 43, 47–57, 71).
Dunbar v Plant [1998] Ch 412, CA applied.
(2) The objective question for the court was always whether any particular acts, whether or not part of a course of conduct, were “capable of encouraging or assisting” the suicide under section 2(1) of the 1961 Act. The mere act of accompanying a person to an assisted dying clinic overseas was capable of being part of a course of conduct which constituted assistance, or could itself be construed as an act of encouragement or assistance. However, the word “capable” was not intended to mean that the court was only required to consider whether accompaniment might in some theoretical circumstances constitute an act of assistance. Though it often would, particularly where the only way in which the deceased was able to travel was with a person’s assistance, it would always depend on the circumstances of the case. Where the children and sister had all expressed a hope that their terminally ill mother and sibling would change her mind, the claimant had made all of the administrative arrangements for travel, and the means available to the family meant that the sister and children were not required to take any steps to assist in that regard, nothing they did was capable of being construed as assisting or encouraging suicide, nor intended to so encourage or assist. Accordingly, their conduct did not cause their interests under the will to be forfeit (paras 61–67).
(3) If modification of the forfeiture rule was sought in an assisted dying case, in circumstances where those next-entitled under the will accompanied the deceased to the place where they took their own life and were present when they died, the court had to give very careful consideration to evidence bearing on the role of those next-entitled before satisfying itself that all necessary parties had been joined to proceedings. A short directions hearing would sometimes be required ensure that the all necessary parties had been joined. That did not mean that a representative party would always be added for the purposes of representing the more remote beneficiaries, as in some cases, the overriding objective would not be best served by taking that course of action, particularly if it was not possible to make a decision on the correct parties and have an effective disposal hearing at the same time. Where in this case the representative had already decided that not opposing the claimant’s application was in the best interests of the class, the right course of action was to appoint the solicitor and confirm the court’s approval of that decision (paras 68, 69, 70).
Toby Bishop (instructed by Michelmores LLP) for the claimant.
John Critchley (instructed by Michelmores LLP) for the first and second defendants.
William East (instructed by Dixon Ward) for the third defendant.
Andre Vartanian, Barrister
Referenced Legislation
Forfeiture Act 1982 (c 34), s 1, 2(1)(2)
Suicide Act 1961 (9 & 10 Eliz 2, c 60), s 2(1)