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Appendix
Homicidal heirs and
battered defendants

A1 IN 1997 THE LAW COMMISSION published a report that considered the

issue of succession law in circumstances where the beneficiary to a will or the heir on an intestacy has unlawfully killed the person from whom they would, in ordinary circumstances, inherit.[295] The Commission recommended codification of the established law: that a killer is not entitled to take any benefit under a victim’s will, or on a victim’s intestacy.[296] Although the killer is barred from profiting from his or her act, the killer’s prior and independent rights are preserved by section 10 of the draft Succession (Homicide) Act.

A2 The Commission considered that the criminal law should define the killings that bar killers from profiting. Consequently, the proposed draft Succession (Homicide) Act defines a killer as “a person ... who ... is guilty of the homicide of the victim” and homicide as “the killing of a person ... by another person, ... that is ... an offence against an Act.[297] However, negligent killings, assisted suicides, suicide pacts and infanticide are all excluded from the definition of homicide.

A3 Under the proposed draft Succession (Homicide) Act, a battered defendant who deliberately killed his or her abusive partner would be excluded from inheriting unless he or she was found to have a complete defence. Some of the options discussed in this paper would make it easier for battered defendants who killed their abusive partners to plead a full defence successfully, thus allowing them to inherit. Other options that relate to the partial defences would not have any effect on the inheritance rights of killers.

A4 The Commission noted that there might be sympathy for a battered defendant who killed the abuser and who could establish a partial defence arising from the abuse. However, it considered that the question came down to whether there is any principled basis for not applying to a battered defendant the bar on profiting that applies to every other killer who establishes a partial defence. We cannot discern a principled basis for distinguishing between different classes of wrongful killers within each partial defence.

A5 Non-probate assets are those assets that do not pass by will or the rules of intestacy but by survivorship. An example of a non-probate asset is property held as a joint tenancy by the deceased and any other person. Normally, on the death of a joint tenant, the property passes to the surviving tenant or tenants. The draft Succession (Homicide) Act completely disentitles a killer to any property interest in any non-probate assets of the victim. Under section 8, non-probate assets are distributed as if the killer had died before the victim. The reasons for this recommendation are set out at length in paragraphs 18 to 20 of the 1997 report.

A6 The Matrimonial Property Amendment Bill would permit surviving spouses to make a claim against a deceased spouse’s estate under the Matrimonial Property Act 1976.[298] The De Facto Relationships (Property) Bill would provide people in de facto relationships of three or more years duration with a right to make a similar claim on the death of a de facto spouse. These rights would be preserved by section 10 of the draft Succession (Homicide) Act.

A7 However, neither Bill will affect the dis-entitlement to non-probate assets that results from the application of section 8 of the draft Succession (Homicide) Act. Clause 80 of the Matrimonial Property Amendment Bill states that any property passing to a spouse by survivorship is not to be automatically treated as the surviving spouse’s separate property and its status is to be determined according to the status it would have had if the deceased spouse had not died. Clause 20 of the De Facto Relationships (Property) Bill has a similar effect. As section 8 prevents non-probate property passing to the killer spouse, neither of these clauses can apply to such non-probate property.