Imagine receiving instructions from a client that his mother has died intestate but that a sibling had taken the property (the principal asset of the estate) and was not prepared to sell the property and share the proceeds of sale 50 / 50.

One's first reaction would be that there is obviously a claim against the sibling who as Administrator of the deceased estate needs to be reminded of the laws of intestacy so as to ensure the proceeds of sale are fairly and equitably distributed.

A letter before claim would duly go out, with a pretty confident air about it.

Then imagine receiving a response from the proposed Defendant along the lines; "your client has clearly not told you the circumstances surrounding the mother's death - it was him that killed her!!!"

Clearly not such a good case after all since Section 1 of the Forfeiture Act 1982 ("the Act") makes it quite clear that a person should not benefit from the estate of a person that he/she unlawfully killed ("the forfeiture rule"). Not an unreasonable piece of public policy legislation one would say…

However, although at first blush the Act might mean the end of the litigation, the forfeiture rule is not as straightforward as it might first appear.

Under Section 2, a person who unlawfully killed is entitled to apply for the rule to be modified or excluded thus enabling them to benefit from an estate that has only been created due to the earlier unlawful act of killing. This provision was introduced as Parliament recognised that cases such as these are not always black or white and that there are often specs of grey.

In a recent example of the rule being modified, X, who was a loving son and upstanding member of the community until a tragic road accident left him with a severe personality disorder and schizophrenia killed his mother. The mother had, following the accident, cared for the son and did everything she could to make his life worth living. Unfortunately the mental trauma was so severe that one day the son had a major breakdown and killed the mother.

The son was initially charged with murder, but ultimately had the charge withdrawn when following the presentation of a psychiatric report to the Court, the trial judge concluded X was unfit to plead and stand trial. The jury on the direction of the Judge was told to make a finding that X had caused the death of his mother. X was accordingly hospitalised in a secure mental unit.

That was not the end of X's involvement with the Courts however. With the assistance of a Litigation Friend, X applied in the civil courts to benefit from the estate of his deceased mother. The application to the Court was to have the forfeiture rule modified.

The basis of the application being that although X had undoubtedly caused the death, he was so mentally impaired that he did not know what he was doing and that his mental impairment should not be a bar to recovering that which he would ordinarily have been entitled to under the laws of intestacy.

X was ultimately successful. What was significant in this successful application was that there was no culpability on the part of X because although there was no question that he had killed his mother, he was found to have no idea what he was doing. X had, until the accident, been a good son with a strong relationship with his mother.

This outcome compares favourably to the negative outcome of a similar application by Mr. Henderson in the case of Henderson v Wilcox and others [2015] EWHC 3469. Mr. Henderson, who having been convicted of the manslaughter of his mother sought to modify the rule and recover from her estate, was found by the Judge to have been aware of his actions at all times. The following passage from the judgment of Judge Cooke at paragraph 57 is particularly pertinent:

“Ian has at all times had the mental capacity to know what he is doing, understand the nature of his acts and to appreciate the difference between right and wrong. None of the medical experts considered him unfit to plead criminal case.”

Cases such as these are extremely rare, but it is important to know that the Courts have a discretion where such tragedies occur, to look at all the circumstances and if appropriate not to punish the individual who has suffered so catastrophically from the change such mental impairment has caused.

The irony of these cases is that it is quite likely that the deceased may well want the child to receive funds from the estate in order to help him or her through the remainder of their lives with the best possible treatment for their mental condition.