Ian Robert Henderson v June Wilcox and Others
| Jurisdiction | England & Wales |
| Judge | Hhj David Cooke |
| Judgment Date | 03 December 2015 |
| Neutral Citation | [2015] EWHC 3469 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: A30BM561 |
| Date | 03 December 2015 |
[2015] EWHC 3469 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil Justice Centre
Bull Street, Birmingham B4 6DS
HHJ David Cooke
Case No: A30BM561
Anna Clarke (instructed by Franklins Solicitors LLP) for the Claimant
The Defendants did not appear and were not represented
Hearing dates: 4 November 2015
The claimant in this case is Ian Henderson ("Ian"). Ian's mother, Mrs Lillian Henderson, died on 2 April 2013 as a result of injuries sustained in a severe assault on her by Ian on the night of 13 March 2013. Ian was convicted of manslaughter at a trial on 15 September 2014, his plea of guilty to that charge and not guilty to murder having been accepted on the basis that he had not intended to kill his mother or cause her really serious injury. He was sentenced (with the agreement of the prosecution) to be detained in hospital under section 37 Mental Health Act 1983, the judge being satisfied that he suffered from a mental disorder such as to make his detention and treatment in hospital appropriate (section 37 (2)), coupled with a restriction order made under section 47 of that Act in order to prevent the public from serious harm if he should be at large.
The main effect of the restriction order (there are others) is that his discharge from hospital requires the consent of the Secretary of State, to whom the responsible clinician must make reports at least annually as to his progress. He remains at present detained in what is described as a medium security establishment. The most recent report indicates that it is anticipated that at some point next year he may be transferred to a low security unit, and in due course to some form of supported accommodation in the community, but it is presently considered unlikely that he will ever be fit for discharge to live unsupported.
Mrs Henderson's will made in 2006 left her entire estate to Ian if he survived her, but it is accepted that by virtue of his having caused her death by his own criminal act prima facie Ian is excluded from benefitting under the will under the common law rule known as the "forfeiture rule". The court however has power to modify the application of that rule in certain circumstances pursuant to the Forfeiture Act 1982, and Ian brings this claim seeking, principally, an order under that Act that permits him to inherit his mother's estate.
There are four defendants named to the claim:
i) Mrs June Wilcox, who is Mrs Henderson's sister-in-law and was named together with Ian as an executor in her will. Mrs Wilcox has obtained a grant of probate, power being reserved to Ian to prove. She filed an acknowledgement of service stating that she takes a neutral position as executor.
ii) Julian Wilcox, son of Mrs Wilcox and therefore nephew of Mrs Henderson who is named in the will as substitute beneficiary if Ian should predecease his mother. The effect of s33A Wills Act 1837 is that if Ian is precluded from inheriting under the will by virtue of the forfeiture rule, he is to be deemed to have died immediately before the testator, with the result that Julian would inherit in his place. Julian filed an acknowledgement of service stating that he did not wish to be involved in the claim.
iii) Mr Andrew Robertson and Mrs Cynthia Duff, who are solicitors practising with a firm in Scotland, and whom I will refer to as "the Solicitor Trustees" for reasons that appear below. Their position, set out in a letter, is that they do not intend to defend the claim but will take account of the court's decision in the exercise of their powers as trustees.
Ms Clarke presents the case on behalf of the claimant, and I am very grateful to her for her careful submissions and guidance to the evidence and relevant authorities. The evidence before me consists of witness statements made by Mrs Henderson's younger sister Suzan Jupp, the claimant's solicitor Ms Taylor and his responsible social worker, Ms Holder. I was in addition provided with a number of witness statements (including one from Mrs Wilcox) psychiatric reports and other material from the crown court trial which are admitted as hearsay, together with a transcript of the criminal trial setting out the circumstances as explained to the judge, the plea and his remarks on sentencing.
The estate accounts show that a sum of just over £150,000 has been gathered in. This is mainly from various accounts and investments held by Mrs Henderson, but also includes half of a sum of some £35,000 found in cash in the house that she shared with Ian after her death. The other half of that amount has been treated as Ian's and given to him.
The estate does not include that house, or any interest in it, for the following reasons. The house appears to have been at one stage owned jointly by Mrs Henderson and Ian. In or about May 2011 however (there is some discrepancy in the dates referred to in the documents before me) the house, which is registered land, was transferred into four names, i.e. Mrs Henderson, Ian and the two Solicitor Trustees. At about the same time, Ian and Mrs Henderson each executed settlements referred to as "Family Protection Trusts". Mrs Henderson's trust named herself and the two Solicitor Trustees as trustees, recited that all her estate and interest in the house had been transferred to the trustees to be held on the trusts set out therein, and named herself, Ian and Julian as beneficiaries. The trusts declared were, in summary, that the property was held on trust for Mrs Henderson, subject to powers to apply income or capital at the discretion of the trustees for the benefit of any of the named beneficiaries. Ian's trust was in mirror image terms, save that it also named a personal friend and an animal charity as additional discretionary beneficiaries.
Does the Forfeiture rule affect the Trusts?
The claim also seeks relief by way of an order modifying the effect of the forfeiture rule "so that [the Family Protection Trusts] are unaffected by its operation", but Ms Clarke's primary submission was that I should declare that the forfeiture rule did not in any event apply to any interest held or acquired under either of the trusts. I propose to deal with that issue first.
Section 1(1) Forfeiture Act 1986 defines the forfeiture rule as "the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing." That seems to me to be a statement by way of identification and not one which purports to codify the rule or set it out in full, for which one must look to the decided cases. There are two aspects of the rule to consider; the first is what crimes or acts are sufficient to engage the rule and the second is what rights or interests are affected by it. It is the second aspect with which I am concerned, since it is accepted that Ian's offence satisfies the first.
In Cleaver v Mutual Fund Life Association [1892] 1 QB 147 the executors of the deceased sued on a life policy taken out by him with the defendants, which named his wife as the payee. The assurer resisted payment on the basis that the effect of s11 Married Women's Property Act 1882 was that the executors would hold any proceeds paid to them as trustee for the wife and it would be contrary to public policy for her to take any benefit arising from the death of the husband she had murdered. Fry LJ (p156) said that the principle argued for, that "it is against public policy to allow a criminal to claim any benefit by virtue of his crime" was "in my opinion rightly asserted. It appears to me that no system of jurisprudence can within reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person. If no action can arise from fraud, it seems impossible to suppose that it can arise from felony or misdemeanour…"
The Court of Appeal unanimously held that the effect of this principle however was not that the assurer was not liable to pay, but that payment was to be made to the executors as representatives of the contracting party (ie the husband) who would hold the proceeds free from the trust in favour of the wife, the wife's interest under that trust being unenforceable. It was, therefore, a case in which the wife's interest under the trust arose prior to the husband's death when the policy was written (and so not by virtue of her crime), but it was her crime which caused the rights under the policy to be converted into money, or at least crystallised the occasion when that occurred.
In Re Crippen [1911] P 108 Sir Stanley Evans P, relying on Carver, said "It is clear that the law is that no person can obtain, or enforce, any rights resulting to him from his own crime; neither can his representative, claiming under him, obtain or enforce any such rights." He accordingly directed that a grant of administration to the estate of Mrs Crippen should not be issued to the personal representative of her husband, Dr Crippen (the mistress for whose sake he had killed his wife). Her entitlement to a grant depended on Dr Crippen being entitled to the wife's estate in intestacy, but once the fact of the murder was accepted as proved, he would have been prevented by the forfeiture rule from inheriting.
In Dunbar v Plant [1998] Ch 412 the defendant and the deceased had entered into a suicide pact. The deceased killed himself in performance of that act, but the defendant's attempt to do so was unsuccessful. The judge below held that, unless modified by the Forfeiture Act, the forfeiture rule applied to prevent the defendant obtaining either (a) full ownership by way of...
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