Does someone who assists with journey to Dignitas risk losing benefit of deceased’s estate?
26 February 2019
Ninan v Findlay and others [2019] EWHC 297 (Ch), 21 February 2019
The claimant, Mrs Ninian, is the sole beneficiary of the residue of the estate of her late husband Mr Ninian under his will. Mr Ninian, who suffered from a progressive incurable disease, died on 16 November 2017 with the assistance of Dignitas in Switzerland. Mrs Ninian was with him throughout the trip to Switzerland, his assessment by representatives of Dignitas and the occasion of his suicide.
Shortly before the trip to Dignitas, Mrs Ninian applied for relief against forfeiture under section 2 of the Forfeiture Act 1982 on the basis that steps taken by her may have amounted to encouraging or assisting her husband to commit suicide which brought in play the forfeiture rule.
An individual is guilty of an offence under the Suicide Act 1961 if they do something capable of encouraging or assisting the suicide or attempted suicide of another person, and that act was intended to encourage or assist suicide or an attempt at suicide. In R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345 the House of Lords considered that acts which help another person to make a journey to another country, in the knowledge that its purpose is to enable the person to end her own life there, are within the reach of the offence under the Suicide Act.
The “forfeiture rule” is a rule of public policy which in certain circumstances precludes a person who has unlawfully killed someone from acquiring a benefit in consequence of that act.
The courts have the power to modify this rule when it is satisfied that the justice of the case requires such modification or exclusion of the rule, for example where the deceased was killed in a car accident.
The question before Chief Master Marsh was whether this was a case of unlawful killing where the circumstances and justice of the case called for exclusion of the forfeiture rule. As Philips LJ observed in a suicide pact case,
When the Act is considered, however, it gives clear indication that the circumstances in which the offence is committed may be such that the public interest does not require the imposition of any penal sanction. This, in my judgment, is the logical conclusion to be drawn form the provision in section 2(4) of the Act that “no proceedings shall be instituted under this section except by or with the consent of the Director of Public Prosecutions”. Where the public interest requires no penal sanction, it seems to me that strong grounds are likely to exist for relieving the person who has committed the offence from all effect of the forfeiture rule. (Dunbar v Plant [1998] Ch 412).
Chief Master Marsh noted that when the couple attended the Dignitas clinic, no direct assistance in the consumption of the substances that led to Mr Ninian’s death was provided by his wife. However, it was clear that he could not have travelled either to Switzerland or to the three appointments with Dignitas without the assistance she provided.
On her return to the UK, Mrs Ninian instructed solicitors to make contact to the police who interviewed her under caution and provided a report to the CPS. Mrs Ninian was subsequently informed that it was not considered that a prosecution would be in the public interest.
In the circumstances, the court was satisfied that the offence under Section 2 of the Suicide Act had been committed and that therefore the forfeiture rule was engaged by virtue of Mrs Ninian’s acts.
However the Master took into account the following salient facts in this case:
Mr Ninian had reached a voluntary, clear and settled and informed decision to commit suicide;
(ii) Mrs Ninian was wholly motivated by compassion;
(iii) Mrs Ninian had sought to dissuade her husband from committing suicide.
(iv) Mrs Ninian’s actions may be characterised as reluctant assistance in the face of a determined wish on the part of her husband to commit suicide.
(v) Mrs Ninian reported the suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide.
It was “fair to say” that what Mrs Ninan did was to assist her husband,
who was a man with a strong independent will, who had been assessed by an eminent consultant as having capacity, to fulfil his wish to undertake a lawful act. On one view, although not a course of action the court can endorse, she did what many persons would do for a loved one.
… There could be no suggestion that Mrs Ninian was motivated by money in the assistance she provided.
The decision by the CPS not to prosecute Mrs Ninian was “a powerful factor” in the grant of relief against forfeiture. The court therefore exercised its power to grant full relief such that Mr Ninian’s share of jointly owned property and her interest as the beneficiary of the residue of Mr Ninian’s estate, that would otherwise be forfeit, would pass to Mrs Ninian.
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