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  1. Wealth
May 20, 2020

Why cases of forfeiture are often ‘not so black and white’

By Spear's

There are forfeiture cases where the court has shown a willingness to strive for fairness, writes Rebecca Waterhouse

Ask Poirot, Sherlock Holmes, Miss Marple – pick your detective – money is the motive. Whether the culprit is the new lover or the jealous business partner, it is a ‘whodunnit’ cliché that crops ups throughout detective literature.

A rich and powerful individual whose ultimate downfall is success and the desire of others to benefit from that success.  What Poirot does not tell you is that the legal principle of ‘forfeiture’ is going to defeat any calculated plot to bump someone off and inherit their fortune.

Forfeiture is a legal principle established in 1982 by the Forfeiture Act. In simple terms, forfeiture prevents any person who has unlawfully killed another from benefitting from the death they have caused. It may seem logical that if you are convicted of murdering someone you should not receive a benefit from their estate, but it is reassuring that the law supports this position.

But what if there are cases where the broad application of forfeiture leads to a punishment disproportionate to culpability?  The Forfeiture Act also gives courts the discretion to waive the application of forfeiture where appropriate. In an interesting but tragic case, the court recently acknowledged that in some cases a strict application of the principle of forfeiture would lead to inequity.

In the case of Amos v Mancini, Mrs Amos had been convicted for causing the death of her husband by careless driving. Mrs Amos was in her early 70s when she drove into the back of a queue of stationary traffic. Mr Amos died as a result of the collision. By all accounts, the crash was a terrible accident, for which Mrs Amos accepted responsibility and plead guilty at the earliest opportunity.

The question that came before the court was whether forfeiture should apply to deprive Mrs Amos of the inheritance her husband had intended that she should receive, which included his share of their jointly owned family home.

Mr Amos’ children from a previous marriage would inherit his estate if forfeiture applied to Mrs Amos and the children argued that the principle should be applied.

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On a strict application of the law, it was accepted that Mrs Amos’ offence amounted to unlawful killing. Historically, when the principal of forfeiture was first applied by the courts the only types of unlawful killing were manslaughter and murder and the courts have applied forfeiture in cases of manslaughter.

Although there was no legal authority for treating Mrs Amos’ offence any differently from manslaughter, the Judge, in this case, took into account the extent of Mrs Amos’ culpability and decided that in the circumstances it would be disproportionate for her to be excluded from benefiting from her husband’s estate.

The court made an order that Mrs Amos should be allowed to receive the proportion of her husband’s estate that he had left for her and to inherit his share in the family home she had jointly owned with him.

It is clear from Mrs Amos’ case that although the principle of forfeiture will continue to defeat the plans of villains in literature, the law in this area is accepting that there are cases in life where the position is not so black and white and the court has shown a willingness to strive for fairness.

Rebecca Waterhouse is an associate at boutique private wealth law firm Maurice Turnor Gardner LLP.

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