Assisted Suicide and Inheritance
Assisted suicide and assisted dying has been in the news again recently and the debate as to whether the law continues to make headlines. The Royal College of Physicians' recent decision to poll its fellows and members on whether there should be a change to the law to permit assisted dying and the late Geoff Whaley's letter to MPs advocating for a change in the law in February this year has kept the debate in the news.
Lord Sumption, who has just retired from the Supreme Court, recently stated “I think the law should continue to criminalise assisted suicide,” he said, adding: “And I think that the law should be broken from time to time.”
He went on to say “It has always been the case that it’s been criminal but it’s also been the case that courageous friends and families have helped people to die. It is an untidy compromise few lawyers would adopt but I don’t think there is a moral obligation to obey the law . . . ultimately it is for each person’s conscience.”
It is an incredibly emotive subject and the Courts are having to grapple with these issues and it is not always easy. We have considered the High Court's recent decision in Ninian v Findlay & Ors below which addressed a wife's right to inherit her husband's estate in circumstances where she assisted his suicide.
What is the law on assisted suicide?
Assisted suicide is legal in many jurisdictions, including, Canada, Belgium, the Netherlands, Luxembourg, Colombia, Switzerland and part of the US and Australia and the push for legalisation in the UK is increasing. Research has found that there is an average of 14,800 internet searches for "Dignitas" per month from the UK.
Under English law suicide is legal but euthanasia, assisted suicide and assisted dying are not and the legal distinction between them is important. Euthanasia is the act of intentionally ending a person's life to relieve suffering and is considered manslaughter or murder with a penalty of life imprisonment. Assisted suicide is any act capable of encouraging or assisting the suicide or attempted suicide of another person with the intention to encourage or assist suicide or attempted suicide. Assisted dying is a campaign to legalize assisted suicide for terminally ill people only, however, it is the same criminal offence as assisted suicide under English law; punishable by up to 14 years' imprisonment.
However, prosecutions for assisted suicide are rare. Between 1 April 2009 and 31 January 2019, there have been 148 cases referred to the CPS by the police that have been recorded as assisted suicide. Of these 148 cases, 100 were not proceeded with by the CPS and 28 cases were withdrawn by the police.
What does assisted suicide have to do with inheritance?
English law prevents a person who has killed (the offender) another from acquiring a benefit in consequence of the killing. This includes any beneficial interest in property which the offender would have either gained under the deceased's will or which was held on trust for the offender. This law is set out in the Forfeiture Act 1982. In other words, if your husband or wife or any other person in your will, unwillingly but out of compassion for your suffering, assists your suicide, the court could prevent them from receiving what you have left for them in your will.
Earlier this year, in Ninian v Findlay, the Court had to consider whether it could apply its discretion to grant relief under the Forfeiture Act to determine whether Mrs Ninian could inherit under her late husband's will.
Mr Ninian had been diagnosed with a progressive incurable disease at the age of 80. Three years later, he decided to proceed with an accompanied suicide and contacted Dignitas without his wife's knowledge or assistance. When he told her of his decision a few months later, she tried to dissuade him, but he remained resolute. She persuaded him to tell his own doctors and to investigate palliative care in the UK. However, at his request, she helped him with some of the administration required by Dignitas, such as the provision of his birth certificate, passport and preparation of a written statement about his circumstances and decision. She also made the travel arrangements, as he was, by then, unable to speak. She accompanied him on the journey because he was unable to travel unaided. She said that she did everything he asked because she loved him too much to refuse. After the death, a police investigation concluded that a prosecution would not be in the public interest. Mrs Ninian was the sole beneficiary under Mr Ninian's will.
The widow had made clear at all times that she did not wish her husband to go to Switzerland to take advantage of the local laws under which Dignitas operated. Nothing she did could be construed as providing encouragement. However, her involvement had been essential to enable him to get to his appointments. Viewed objectively, her acts were plainly capable of assisting the suicide. Equally plain was the fact that, although she did not wish him to commit suicide, she intended to assist him to do so. With that in mind, the Forfeiture Act was engaged and the court had to decide whether it could grant relief. The determining factors in the Court granting relief and allowing Mrs Ninian to inherit under husband's will were:
- Mr Ninian had reached a voluntary, clear and settled and informed decision to commit suicide which he recorded umabiguously;
- Mrs Ninian was wholly motivated by compassion;
- Mrs Ninian had sought to dissuade her husband from committing suicide and her actions were characterised as reluctant assistance in the face of a determined wish on the part of her husband to commit suicide.
- Mrs Ninian reported the suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide.
- Mr and Mrs Ninian were married for 34 years. It was a first marriage for both of them and all the evidence points towards a strong and loving relationship.
- The size of Mr Ninian’s estate was not small but when measured against Mrs Ninian’s independent wealth it was not significant. There could be no suggestion that Mrs Ninian was motivated by money in the assistance she provided.
- Mrs Ninian’s brothers would have been entitled to take the forfeited property if relief had not not granted. They had no wish to do so and supported her application.
It was noted in this case, that the court's decision to grant relief from the Forfeiture Act was 'greatly assisted by the quality of evidence with which it has been provided and by having a statement from Mr Ninian that was the product of independent legal advice'.
It is clear from this case that if assisted suicide is genuine consideration, it is worth seeking legal advice and following proper procedure so that you can protect those involved.