A Civil Answer to a Criminal Question
On 6 June 2017, the heiress Paula Leeson was found dead in the swimming pool of a Danish holiday cottage where she was staying with her husband, Donald McPherson, better known as Don. Paula’s death came shortly after Don had secretly taken out multiple insurance policies on their joint lives, worth around £3.5million. Coincidence? Perhaps it was, as in 2021 the Criminal Court found Don ‘not guilty’ of his wife’s murder.
Seemingly, Don was now free to inherit his wife’s estate, to benefit from the life insurance policies and to receive the other property they had owned together. However, the Criminal Court’s decision was not the end of the story and on 6 September 2024, following a trial in the Chancery Division of the High Court of Justice, Mr Justice Richard Smith handed down his judgment in the case of Leeson & Anor v McPherson [2024] EWHC 2277, finding that Don had unlawfully killed Paula.
Mr Justice Smith’s judgment did not overturn the verdict of the 2021 trial and Don remains a free man, finding himself in a Schrödinger’s cat-like scenario: he did not murder Paula but he did unlawfully kill her; he is, at the same time, criminally innocent and civilly responsible for her death. What does that mean for him?
The Forfeiture Act 1982
As discussed in our article entitled, ‘Hi, it’s the Forfeiture Act 1982, I’m the Problem, It’s Me,’ the “Forfeiture Rule” stops a person that has unlawfully killed another from acquiring a benefit as a consequence of that killing (s.1 Forfeiture Act 1982). In this case, the fact that Don was found to have unlawfully killed his wife, means that he will forego any benefit he would otherwise have received from her estate, her share of any jointly owned assets or the various life insurance policies which he had taken out in secret shortly before her death. But how did the Court arrive at its decision?
The Civil proceedings were brought by Paula’s son and father, who argued that Dom was a ‘long- term fraudster who had dishonestly and deceptively procured significant life insurance policies on Paula’s life’. They relied on a variety of evidence as to Don’s historic dishonesty and poor financial management, as well as electronic data from Paula’s Fitbit, which showed her heart rate activity at the time she died, and asked the Court to make a finding that ‘rather than being inherently improbable, it was probable that Don did unlawfully kill’ Paula. The Court agreed and Mr Justice Smith held that Don had ‘deliberately and unlawfully killed Paula by compressing her neck in an arm lock, rendering her unconscious and causing her body to enter the pool to ensure her drowning and death’. As to Don’s motivations, the judgment records that ‘with his financial fortunes waning by 2017, but his wanderlust growing more intense, Don decided that now was the time to cash in…knowing that there would be no other witness to his brutal actions’.
How does this apply to jointly owned assets?
Paula and Don owned a number of properties together as beneficial joint tenants. Typically, when one beneficial joint tenant dies, their beneficial interest automatically passes to the other, leaving the survivor as the sole owner; this is known as “the right of survivorship”.
One way to stop the right of survivorship from applying is for the joint tenancy to be severed during lifetime.
If Paula or Don had wanted to sever the joint tenancy prior to Paula’s death, either one of them could have done this unilaterally by serving written notice on the other. A notice of severance should be worded carefully otherwise important property rights could inadvertently be lost or weakened. A notice must also be served validly and it is then sensible to apply to the Land Registry for the title to be updated. Once a joint tenancy is severed, it becomes a tenancy in common, and the right of survivorship does not apply. When a tenant in common dies, their beneficial interest (usually 50%) passes under the terms of their Will or, if there is no Will, under the intestacy rules.
Written notice is, however, not the only method of severing a joint tenancy. The effect of the Forfeiture Rule upon a joint tenancy had not previously been expressly decided by the English court, but there are strong comments made in cases such as Re K [1985] Ch. 85 and Dunbar v Plant [1998] Ch. 412 which support the fact that one way, and perhaps the most extreme way, of severing a joint tenancy is by one joint tenant unlawfully killing the other. In this case, Mr Justice Smith confirmed what has long been considered to be the case, holding that Paula’s beneficial interest in the jointly owned properties did not pass to Don as a result of the part he had to play in Paula’s death.
Conclusion
The Forfeiture Rule exists for public policy reasons, preventing someone from inheriting when it would be manifestly wrong for them to do so; it is rooted, like the Chancery Division itself, in fairness and equity. Above all, this case shows the Civil Court implementing this rule and providing a just outcome to matters that have plagued Paula’s family for over six years.
Our expert Private Wealth Disputes and Home Ownership Disputes teams work together to assist clients and estates dealing with disputes of this nature.
Similarly, if you do not want your interest in jointly owned property to pass to the other owner on your death, please contact the Home Ownership Disputes team. We can advise and assist you with severing your joint tenancy.
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