The so-called ‘great wealth transfer’ is well underway, with experts predicting that £5.5 trillion in assets is set to be passed down by the so-called ‘baby boomers’ over the next decade. There has been much commentary about its implications, including the need for good estate planning and the impact on society more widely.
The intersection between wealth transfer and the increased use of assisted dying clinics (such as Dignitas, in Switzerland) is an important, if somewhat taboo, part of the conversation.
With new legislation progressing through the Westminster and Holyrood governments that would make assisted dying legal in the UK, we anticipate an even greater focus on these issues in the coming years.
It is clear that many people globally are in favour of a legally permitted way of choosing to end your own life. Dignitas reported a 24% increase in membership between 2023 and 2024. In the UK, a recent representative study by Kings’ College, London also found that two thirds of the population support legislation for assisted dying.
Concerns over implementation
Despite the broad support, however, there remains significant concern and scepticism about how such a law should be implemented, and what the unintended consequences may be:
- For example the same survey showed that 61% of participants were concerned that some people may feel pressured to have an assisted death
In addition, while people may be comfortable with the idea of an individual being able to choose to end their own life, the position of family members or carers who may be asked to assist in that process is much more controversial. In the UK, while suicide is no longer a criminal offence, under s2 of the Suicide Act 1961 it remains a criminal offence for a third party to assist or encourage another to commit suicide. That looks set to change under the new legislation, but this is an area fraught with difficulty and the potential for disputes as we go on to consider below.
The forfeiture rule
Even before new law is made, we are already seeing the impact of assisted dying on wealth transfer play out in UK courts. The ‘forfeiture rule’ – that is, the legal rule which bars a person from benefitting from a crime they committed- has been considered recently in this context. Under the law as it stands, someone assisting someone in making use of the Dignitas service would be caught by s2 of the Suicide Act 1961 and the starting point is that person could not benefit from the deceased’s estate. Instead they would have to make an application to court to ask the court for ‘relief from forfeiture’. Under that process, the court has discretion to disapply the forfeiture rule if it finds that in all the circumstances it is just to do so.
- In Re Ninian (Deceased) the forfeiture rule was disapplied in circumstances where the wife of a man with a degenerative condition assisted her husband who wanted to use the Dignitas service in Switzerland to end his life: his wife reluctantly agreed to help him in providing the correct documentation for the clinic and travel there too. As already noted, under the law as it stands, assisting suicide remains an unlawful act and so the starting point is that the forfeiture rule applies. In deciding to disapply the forefeiture rule, the court was careful to determine that there had been no encouragement on the part of the wife for the husband to use Dignitas.
- In Morris v Morris: the judge clarified the law further and showcased the extent of the court’s flexibility in choosing not to enforce the forfeiture rule: Mr Morris applied for relief from the forfeiture rule after self-reporting to the police that he had “assisted” his terminally ill wife by:
- travelling to Switzerland to a clinic where she ultimately self-administered a lethal injection;
- making necessary administrative arrangements for his wife to take her own life in Switzerland (which the court found was done “out of his deep love and compassion” for his wife); and
- completing the necessary paperwork on their arrival at the clinic.
The court found that at no point did Mr Morris encourage his wife to take her life nor did he physically assist her in the final act of taking her life (in fact always encouraging her not to right until the end).
The court held that: “…the combination of Myra’s determination to proceed and Philip’s reluctant willingness to assist (but only because she was so determined) are clear indicators that the assistance he gave cannot be characterised as encouragement….”; that Mr Morris’ wife “…had made a voluntary, clear, settled and informed decision to commit suicide prior to the time at which Philip started to take any steps capable of amounting to assistance. She maintained that decision throughout the period up to her death.”; and that Mr Morris was wholly motivated by compassion.
Mr Morris’ was granted relief from forfeiture, which meant he was able to inherit as intended by his wife.
Impact of legislation on wealth transfer
If assisted dying legislation comes into force in the UK, it would have important effects on wealth transfer issues.
The bill will introduce a regulated framework which will allow someone who is terminally ill (with 6 months or less to live) to seek assistance in dying without (i) those assisting facing any criminal liability during this process; and (ii) without triggering the forfeiture rule in respect of those who assist them (because assisting someone to end their life would no longer be an unlawful act, provided the new laws are followed).
Many will view these potential changes as a good thing. There is arguably significant unfairness as the law stands for family members who find themselves having to apply to court for relief from forfeiture. Not only have they had to face the mental anguish of helping their loved one end their own life, but may then find themselves unable to inherit without justifying their actions via expensive and distressing court proceedings.
However, there are also legitimate concerns about how far assisted dying may be taken and the potential for the new legislation to be abused, especially by those seeking financial gain.
As drafted, the UK assisted dying bills are intended to apply only to those who are terminally ill and the intention is to have a rigorous regulatory framework in place, including both medical and judicial oversight / approval, to ensure the laws are not abused.
Potential for abuse
In terms of the potential for abuse of the legislation and controversial outcomes, there are several areas of concern:
- Rather than being strictly confined to those with confirmed terminal illnesses, will we see a broadening of the scope of those able to use the law? This is what has happened in other countries. In Canada, for example, assisted dying was legalised in 2016 and then expanded in 2021 to non-terminally ill people. Canada is now preparing to allow assisted dying for people whose sole condition is a mental illness. In Belgium, where assisted dying for non-terminally ill people has existed since 2002, the proportion of non-terminally ill people opting for assisted dying has increased from 7% in 203 to 21% in 2023.
- What level of medical and judicial oversight will we end up with in practice? The UK’s health services and court system are already overstretched and under-resourced. Will the intended checks and balances, removing the guardrails against vulnerable people being unduly influenced into an assisted death. Will people end up using assisted dying services who do not have mental capacity to make that choice?
- As highlighted above, in one study, more than two thirds of the participants were worried that about undue pressure. This may occur in combination with financial abuse and will arrangements being altered via undue influence, or at a time when the testator lacks capacity.
With claims about wealth transfer already on the rise, it is clear that if the assisted dying legislation progresses as planned, it will not be long before those claims also include allegations that the deceased was coerced into a premature death.
Richard Pike is a Partner and Sonny Dhanda is a Senior Solicitor at Brodies LLP
