Unlawful killing and Claiming TNRB

Trusts Discussion
1

I am dealing with a probate case where the husband killed his wife and then committed suicide a few days later. Neither of the parties left Wills and there are no children. I am acting for the family of the husband’s estate.

As the husband did not survive his wife by 28 days his estate is not entitled to benefit from her estate. In any event, s1 Forfeiture Act 1982 prevents his estate from benefitting from his wife’s estate. All parties accept this position.

The husband’s estate is likely to exceed £325,000. Therefore, my question is can I make a claim to transfer any unused NRB from the wife’s estate (if available)? Or, is this prevented by virtue of s1 Forfeiture Act?

Any comments would be appreciated.

Paul Finn
Goddard Dunbar

2

From the dim and distant recesses of my law degree I think Crippen held that the murderer’s PRs could not claim a benefit and there was a suicide pact case that said forfeiture applied to a “benefit” caused to accrue directly by the unlawful act? A tax relief benefits the estate, so I think not.

I look forward to other comments on this.

Iain Cameron
STAR LEGAL LIMITED

3

There may not have been either a murder or a manslaughter conviction given the suicide, see s.2 (2) and (3) FA 1982. S.1 FA 1982 refers to an unlawful killing and a general public policy rule . It might be worth checking to what that term amounts.

The Forfeiture Act 1982 regulates some, but not all of the adverse effects of the general public policy rule, which is not a creation of statute. S1 is quite clear on that point, particularly when the rest of the Act is taken into consideration

To my mind, the NRB is a statutory creation, not a heritable property right as such.

Can the issue be rephrased? Perhaps asking whether the public policy rule forbids the NRB statutory provision from applying?

If put in those terms, the answer may be that s.1 and eth remainder of FA 1982 does not in fact forbid it, but seems to supports the NRB advantage flowing through when the killer in fact does not benefit from the NRB himself.

The NRB is not a property right as such.

The Forfeiture Act provides, inter alia for the Courts still to allow social security payments to dependents, and claims by dependents for maintenance etc.

You might find that the NRB is available in this case, but only because the unlawful killer does not directly benefit owing to his taking his own life .

If there is an issue s.2 FA 1982, permits a court to make a ruling on the issue, and it looks as if you might fall within the scope of that provision.

Basically, does it not boil down as to whether HMRC will challenge this? Here they might simply abstain as I would imagine that the effect upon the relatives will have been severe.

Peter Harris

www.overseaschambers.com

4

My understanding is that “forfeiture” is a matter of Public Policy and that the Forfeiture Act provides a mechanism for relief from forfeiture where, in the circumstances, forfeiture would be unreasonable.

In the circumstances described, I anticipate the onus would be on HMRC to consider the request in the first instance and only if a dispute arose that the matter might need a judicial view.

Whilst there is no need for the surviving spouse to be a beneficiary of the estate of the first to die in order for their personal representatives (PRs) to successfully claim the benefit of any unused nil rate band, to my mind Public Policy would exclude a claim by the husband in the situation set out.

Having said that, I see no reason why the husband‘s PRs might not submit a TNRB claim, provided that they set out the particular facts of the situation. If they merely submit a claim in the standard format, HMRC may have no information as to the background facts and, if it becomes of the facts at a later date, may consider that the PRs have deliberately sought to mislead, with the PRs then being at risk of personal liability for any IHT subsequently assessed together with interest and penalties.

Paul Saunders

5

Section 1 of the Forfeiture Act 1982 enshrines in legislation the public policy rule that a person who unlawfully kills another cannot benefit from their estate. Therefore if a husband murders his wife he and his estate cannot benefit from her estate.
Caroline Wilden
Probate Solicitors

6

Further to the above, the IHT400 was submitted setting out all the facts of the case, and making a TNRB claim.
HMRC raised no questions, and I have now received a letter of clearance confirming that there is no tax to pay.

Thank you to all above for your comments, which were very much appreciated.

Paul Finn
Goddard Dunbar

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