Relief: when is it merited?

Ninian v Findlay [2019] EWHC 297 (Ch)

Court grants relief against forfeiture rule to spouse who accompanied husband to Dignitas

As many will be aware, the forfeiture rule is a rule of public policy which, in certain circumstances, prevents someone who has “unlawfully killed another” from benefitting as a result of that killing. In that context, unlawful killing includes aiding, abetting, counselling or procuring the death of another person, for instance by assisting with their suicide, a crime under section 2 of the Suicide Act 1961.

Mrs Ninian felt bound to help her increasingly frail husband with the necessary arrangements

Mr Ninian, a successful businessman who later became a noted travel writer, was diagnosed with progressive supra-nuclear palsy in 2013, a rare and incurable progressive neurological condition. He and Mrs Ninian had been married since 1983.

Mr Ninian took the decision to end his life and in 2016 – without Mrs Ninian’s knowledge – he contacted Dignitas, the “assisted suicide” centre in Zurich, Switzerland. On learning of this, Mrs Ninian strongly opposed the decision.

Over the course of the next 15 months Mr Ninian made arrangements to travel to the Dignitas centre. However, as his condition worsened he had to rely more and more on Mrs Ninian – who, while still opposed, felt bound to help her increasingly frail husband with the necessary arrangements. This included helping with the “administration” required by Dignitas, organising the trip to Zurich (the judgment notes rather poignantly that Mrs Ninian purchased a return ticket for herself and a one-way flight for her husband) and accompanying him to the centre where, on 16 November 2017, Mr Ninian passed away.

The couple had sensibly sought legal advice in advance and Mr Ninian was advised to make a new will, in which he substituted Mrs Ninian’s brothers in place of two charities and left the residue of his estate to his wife. A large part of the estate in fact comprised jointly owned assets worth some £1.5m which, but for the potential application of the forfeiture rule, would have passed by survivorship to Mrs Ninian.

The two key questions for Chief Master Marsh to address were:

1. on the balance of probabilities, was Mrs Ninian guilty of an offence under section 2 of the Suicide Act 1961, and
2. if so, should she be granted relief from forfeiture under section 2 of the Forfeiture Act 1982?

In relation to the first question, Chief Master Marsh held that, looked at objectively, Mrs Ninian’s involvement did amount to acts which were capable of assisting her husband’s suicide.

Turning to the second question, and, ultimately, in granting Mrs Ninian relief from forfeiture, Chief Master Marsh relied upon the following:

• the Crown Prosecution Service had chosen not to prosecute Mrs Ninian, deeming it not to be in the public interest
• a policy statement issued by the Director of Public Prosecutions in February 2010 on assisted suicide, specifically paragraphs 43 to 45
• a statement which Mr Ninian had prudently prepared (with legal advice) in advance of his suicide, and
• prior authority, most notably the factors set out by Lord Justice Mummery in Dunbar v Plant [1998] Ch 412.

This is clearly a sensible decision which took account of the devotion and love which Mrs Ninian had for her husband.

One point worth considering – though not mentioned in the judgment – is whether any consideration was given to the possibility of Mr Ninian gifting his assets to Mrs Ninian during his lifetime rather than in his will, which may have circumvented the application of the forfeiture rule altogether.

Cowan v Foreman and ors [2019] EWHC 349 (Fam)

Court refuses spouse permission to bring out of time Inheritance Act claim despite standstill agreement

Cowan involved a spouse applying for permission to bring her Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA 1975) claim 17 months after the expiry of the six-month time limit prescribed under section 4. Unlike many statutory limitation periods, the court has discretion to permit claims out of time.

This was a case where the appropriate possible relief would be a claim founded in breach of trust

The rationale, cited in Cowan, for “the six-month rule”, was set out by Mr Justice Briggs in Nesheim v Kosa [2006] EWHC 2710 (Ch): “namely to avoid the unnecessary delay in the administration of estates to be caused by the tardy bringing of proceedings […] and to avoid the difficulties which might be occasioned if distributions of an estate are made before proceedings are brought, requiring possible recoveries from beneficiaries if those proceedings once brought are successful”.

When considering out-of-time applications, the court will generally have regard to the factors set out in Re Salmon [1981] Ch 167 and Re Dennis [1981] 2 All ER 140. In the present case, however, Mr Justice Mostyn essentially boiled these down to two questions:

1. has the applicant shown good reasons to justify the delay, and
2. if so, and in any event, do they have a meritorious claim?

Mr Justice Mostyn felt that this was therefore not a discretionary remedy but rather a “value judgment”, ultimately refusing to grant the widow relief.

In relation to the first question, Mr Justice Mostyn found that there was no good reason for the delay, despite the fact that the parties had purportedly agreed a “standstill”.

In relation to the second question, Mr Justice Mostyn determined that the claimant did not have a meritorious claim. That is perhaps unsurprising when one considers that, under the will, the vast majority of the deceased’s estate was settled on two trusts: a discretionary trust which attracted business property relief and named the claimant as one of its objects; and a trust of residue, where the claimant was the life tenant with a power of appointment of capital in her own favour. The will was also accompanied by a letter of wishes requesting that the trustees treat the claimant as the principal beneficiary and ensure that “all of her reasonable needs were […] met, with requests by her for capital being considered generously”.

As Mr Justice Mostyn correctly pointed out, this was therefore not a case where the appropriate remedy, if any, was relief under the IPFDA 1975. Instead, to the extent that the trustees did not provide for the claimant, this was a case where the appropriate possible relief would be a claim founded in breach of trust.

While on first glance this may appear to be a surprising decision – and one which many practitioners fear will close the door on such applications simply because of delay – the particular facts of this case (primarily that the widow was the principal beneficiary of the trusts) highlight that this decision was made with a firm eye on the overriding objective.

Of greater concern to practitioners will be the possible nail in the coffin of standstill agreements, given Mr Justice Mostyn’s comment that “a moratorium privately agreed after the time limit has already expired should never in the future rank as a good reason for delay”.

An update on Bhusate v Patel

At the time of writing, however, Chief Master Marsh (who granted relief in the Ninian case above) has just granted relief to a widow whose claim was 25 years and nine months out of time in Bhusate v Patel [2019] EWHC 470 (Ch) – considerably later than the previous longest delay of five years and five months in Stock v Brown [1994] 1 FLR 840.

In fact, in an afterword to his decision, Chief Master Marsh noted the Cowan decision and commented that he did not consider it right to conflate the issues of the exercise of discretion under section 4 with the overriding objective or the court’s approach to relief from sanctions.