On 28 October 2009 Susan Hursthouse (the appellant) pleaded guilty to an offence of fraud contrary to s1 of the Fraud Act 2006. The offence involved the forgery of the will of Henry Swinscoe (the testator). The appellant was accused along with her mother Jean Oldknow, who had previously been married to the testator. The testator died on 1 July 2008. He left a professionally drawn will dated 13 May 2004 by which he left everything to his then wife, Netta, or, in the event of her predeceasing him, which she did, his estate to be divided equally between the appellant and his nephew, Paul Spencer (the nephew). On 28 September 2007 the testator executed an enduring power of attorney that appointed the appellant his sole attorney with general powers in relation to his property and affairs.
Following the testator’s death a further will emerged. It was drawn on an ‘over the counter’ will form and dated 10 February 2005. It purported to be properly signed and attested. It appointed the appellant sole executor and left the whole of the residuary estate to her. The appellant then instructed solicitors to ‘collect and get in the estate’. However, the 2005 will was a forgery by Jean Oldknow. It was alleged that the appellant had been party to the forgery and had knowingly sworn a false affidavit giving her solicitors instructions to obtain probate of what she knew to be a forged will. This was the basis of the count to which she pleaded guilty.
Probate was granted to the appellant of the forged will on 19 September 2008. The true facts subsequently came to light and arrests took place and a restraint order was made in February 2009. By this time the solicitors had begun the administration of the estate but it was incomplete. The appellant had given no instructions for distribution and no distribution had been made.
The prosecution sought a confiscation order in respect of a sum representing 50% of the value of the estate, being the nephew’s share under the genuine will. The court held that the appellant had benefited from her particular criminal conduct under s6(4)(c) of the Proceeds of Crime Act 2002 and made the appropriate confiscation order. The appellant appealed the order, arguing (1) that she had not benefited from her criminal conduct within the meaning of the Act and (2) that in the circumstances the confiscation order was disproportionate.
Section 76(4) of the Proceeds of Crime Act provides that a person benefits within the Act if they obtain property as a result of or in connection with their criminal conduct. The appellant argued that she did not obtain property by virtue of becoming a sole executrix and beneficiary of the estate under the forged will: she obtained no property as executor as she was merely getting in the estate and could not dispose of it until it was administered. She maintained that acquiring her sole beneficial interest under the forged will was not obtaining property within the Act. Even if the interest were property, as executor the appellant had delegated the task of getting in the estate to solicitors who would not follow any instructions for disposal unless the estate were ready to be administered. She therefore had no power of disposition or control over the estate to constitute an obtaining of it within the Act. On the facts it was not possible to bring her within s76(4).
In relation to the deceased’s bank accounts, over which she held an EPA, the appellant argued that she obtained no proprietary interest in them at the time of the testator’s death as on becoming executor she similarly gave control of those monies to the solicitors who would not have followed any instructions for disposal unless they were lawful and it would not have been lawful for property to be disposed of unless the estate was ready to be administered.
With regard to the second issue, the appellant argued that the confiscation order was disproportionate: as the fraud was detected before the distribution of the estate, the other beneficiary under the valid will received the inheritance to which he was entitled. He was therefore in a similar position to other victims of crime who have had their property restored to them. Further, there had been no additional benefit obtained by the appellant by reason of the offence.
The Crown argued that the testator had been denied the opportunity to dispose of his property as he would have done if he had known of the forgery and therefore the appellant should be regarded as having fraudulently obtained the whole estate. Therefore, full restoration of the property had not occurred and in the circumstances the confiscation order was justified under Article 1 Protocol 1 to the European Convention on Human Rights as being in accordance with the ‘general interest’.
- (1) A grant of probate while unrevoked is conclusive evidence of the due execution and validity of the will. It thus conclusively established the appellant’s position as sole executrix and beneficiary until such time as it was revoked. Therefore the appellant acquired full legal and beneficial title to the estate property and with it a power of disposition and control. The solicitors appointed to act were acting as her agents and on her instructions with which they would comply as long as they were not otherwise unlawful. In addition the appellant could, while the estate was in administration, have assigned her interest in it in her capacity as sole beneficiary. In the circumstances the appellant had obtained property within the Act.
- (2) There is no requirement under the Proceeds of Crime Act 2002 that the offender enjoy the benefit of property obtained. The Act also does not provide a period of time for which the property must be held for it to be treated as having been obtained.
- (3) The purpose of confiscation proceedings is to recover the financial benefit that the offender has obtained by their criminal conduct. In this case the Crown, by the prosecutor’s statement of information, had specifically identified that benefit as the sum represented by the nephew’s 50% share of the estate. The Crown’s argument that the testator might have altered his will had he known of the appellant’s behaviour was wholly speculative and artificial, a forged will normally emerging only after death. The court was only concerned with the actual consequences of the appellant’s criminal conduct.
- (4) The decision of the Supreme Court in R v Waya  UKSC 51 makes clear that where property obtained by a criminal has been restored or stands ready to be restored in full to the victim in circumstances where there has been no additional benefit to the offender a confiscation order will be disproportionate. The appeal was allowed accordingly and the confiscation order quashed.