Analysis
Mr and Mrs Ninian were married in 1983 when he was aged 49 and she was aged 28. They had a long and loving marriage but had no children or dependents. Thirty years later, when he was aged 80, Mr Ninian was diagnosed with a progressive incurable disease, Progressive Supra-nuclear Palsy. In about August 2016, without his wife’s knowledge or assistance, Mr Ninian contacted Dignitas as he had evidently decided to end his life before his disease entered the final stages. When he told his wife of his decision, she tried to dissuade him from going through with his plan. Mr Ninian was resolute in his decision, even though alternative options were presented to him by his doctors. By August 2017 the disease had progressed to the point that Mr Ninian had increasing difficulty with swallowing and was unable to move his eyes. His general mobility was poor and he needed to be accompanied if he were to attend Dignitas. Dixon Ward assisted Mr Ninian in the preparation of a statement recording his reasons for deciding to end his life and in the preparation of a new will. He was also assessed by Dr James Warner as regards his testamentary capacity and his capacity to decide about significant treatment options such as attending Dignitas. Mrs Ninian dealt with the travel agents to reserve flights to Zurich. Mrs Ninian accompanied her husband on the flight because he was unable to travel unaided and, following three appointments, he committed suicide with the assistance of Dignitas on 16 November 2017. Subsequently, Mrs Ninian was interviewed by the police under caution – they then provided a report to the Crown Prosecution Service and, in due course, Mrs Ninian was informed that although the evidential test had been passed it was not considered that a prosecution would be in the public interest. Mrs Ninian was the sole beneficiary under her husband’s will although the larger part of his estate included jointly owned assets with a value of £1,589,059. By a Part 8 claim issued on 9 November 2018, Mrs Ninion applied for relief against forfeiture under s2 of the Forfeiture Act 1982 on the basis that steps taken by her amounted to assisting her husband to commit suicide and thereby triggered the application of the forfeiture rule.
Held (granting relief from forfeiture):
The forfeiture rule was a rule of public policy which precluded a person who has unlawfully killed another from acquiring a benefit in consequence of the killing. References in the legislation to a person who unlawfully killed another included a person who unlawfully aided, abetted, counselled or procured the death of the other. Where a court determines that the forfeiture rule has precluded a person from acquiring any beneficial interest in property as a consequence of the death of the other, the court has a discretion to modify the effect of the rule. However, it may not make an order modifying the effect of the rule unless it was satisfied that, having regard to the conduct of the offender and of the deceased and to such other circumstances as appeared to be material, the justice of the case requires the effect of the rule to be modified. Caselaw had established 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 his life there, are within the reach of the offence of aiding, abetting, counselling or procuring a suicide and, on the facts of this case, there was no doubt that Mrs Ninian had committed an offence contrary to s2 of the Suicide Act 1961. Having regard to the factors which the court has to take into account when considering if the justice of the case requires the effect of the rule to be modified, no single factor was determinative but the decision of the Crown Prosecution Service not to prosecute Mrs Ninian was a powerful factor in favour of granting relief. With the assistance of such qualitative evidence as was provided in this case, the court was satisfied that the circumstances provided a compelling case for its discretionary power to be exercised to grant relief such that Mr Ninian’s share of the jointly owned property and his wife’s interest as a residuary beneficiary of his estate, that would otherwise be forfeit, should pass to Mrs Ninian.
JUDGMENT CM MARSH: [1] The claimant (Mrs Ninian) is the sole beneficiary of the residue of the estate of her late husband (Mr Ninian) under his will dated 9 November 2017. Mr Ninian died on 16 November 2017 with the assistance of Dignitas in Switzerland by committing suicide. Mrs Ninian was with him throughout the trip to Switzerland, his assessment by representatives of …Continue reading "Ninian v Findlay & ors [2019] WTLR 645"