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Public Act . . . of 199–
Royal Assent: Day Month 199–
Comes into force: Day Month 199–
TABLE OF PROVISIONS
1 Purpose
2 Commencement
3 Application
4 Act to be a code
5 Act binds Crown
6 Definitions
Disentitlements of killers to property
7 Disentitlement of killers under will or intestacy
8 Disentitlement of killer to victim’s non-probate asset
9 Disentitlement to apply under Family Protection Act 1955
10 Restriction of killer’s claims as to matrimonial property, testamentary promises, and restitution
11 Disentitlement of killer to enhanced benefits generally
12 Caveat against dealing with land
Evidential provisions
13 Evidential effect of conviction in New Zealand
14 Evidential effect of acquittal in New Zealand
15 Evidence if no prosecution in New Zealand
Amendments to other enactments
16 Amendments to other enactments
Schedule 1 – Enactments amended
Administration Act 1969
Criminal Justice Act 1985
Proceeds of Crime Act 1991
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The Parliament of New Zealand enacts the Succession (Homicide) Act 199– |
COMMENTARY |
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1 Purpose The purpose of this Act is to codify the law that precludes a person (a killer) who kills unlawfully another person (a victim) from benefiting as a result of the death of the victim from the victim’s estate or from some other property arrangement. Definitions: killer, person, property, victim, s 6 2 Commencement This Act comes into force one month after the date on which it receives the Royal Assent. Definitions: month, Acts Interpretation Act 1924 s 4 |
Section 1 C1 Section 1 states the purpose of the draft Act: to codify the law that precludes a person (a killer) who kills unlawfully another person (a victim), from benefiting as a result of the death, whether from the victim’s estate or from other property arrangements. The (invariably linked) terms killer and victim are defined by section 6. The Commission recognises that the term victim can have unfortunate negative connotations, but prefers it to alternatives like the words “person killed”. C2 The Act is based on the principle that nobody should profit from his or her own wrongdoing (nullus commodum capere potest de injuria sua propia). This principle has many analogues in other common and statutory law, for example:
Section 2 C3 Section 2 provides that the Act comes into force one month after it receives the Royal Assent. This period of delay permits executors and others responsible for the administration of estates and trusts to study the terms of the Act before it comes into force. |
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3 Application This Act applies to interests in and claims against property resulting from the death of a victim before or after the commencement of this Act, but does not affect (a) a distribution made by an administrator, executor or trustee before the commencement of this Act; or (b) a transmission by survivorship registered before the commencement of this Act under the Land Transfer Act 1952 (or any earlier Act relating to registration and transfer of title to land); or (c) a grant of probate or letters of administration made before the commencement of this Act; or (d) any interest in or claim against property that is the subject of a proceeding commenced before the commencement of this Act, whether or not judgment has been delivered in that proceeding or an appeal against judgment was commenced before that time; or (e) any interest in property a person (other than a killer) acquired for value. Definitions: property, victim, s 6; commencement, Acts Interpretation Act 1924 ss 10A, 11 |
Section 3 C4 The Act codifies what is generally understood to be the present general law so that the law, more clearly stated and unified, can be applied with less delay and expense. For this reason the Act applies not only prospectively but also to interests in property, and claims against property, resulting from deaths before it commences (section 2). C5 There are, however, five exceptions to this retrospective operation. To the extent that the Act changes the scope of the bar on killers taking benefits through their wrongdoing, section 3 provides that the Act does not affect:
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4 Act to be a code (1) This Act has effect as a code in place of the rules of law, equity and public policy that preclude a killer from receiving, becoming entitled to, or claiming interests in property as a result of the death of the victim. (2) Notwithstanding subsection (1), this Act does not affect the entitlement of any person under a contract. Definitions: killer, person, property, victim, s 6 5 Act binds Crown This Act binds the Crown. Note: See Acts Interpretation Act 1924 s 5(k) |
Section 4 C6 The Act replaces the present general law (including the Proceeds of Crime Act 1991, which section 16 and Schedule 1 amend so that ss 25–29 of that Act do not apply to killers). Section 4(2), however, provides an exception. C7 Subsection (2) makes it clear that the exclusion of the prior rules effected by subsection (1) does not affect the entitlement of any person under a contract. The law of contract (including the Illegal Contracts Act 1970, already itself subject to all Acts) continues to apply to any proceeding under the law of contract for a benefit resulting from the death of a victim. The draft Act concerns the law of succession. The law of contract has its own rules for preventing profiting by wrongdoers, in particular the rules concerning contracts illegal in their purpose, or contracts legitimate in their purpose but performed illegally. It is these rules – together with the terms of the policy and the fact that a deliberate killing is not a fortuity – that prevent a killer recovering, for example, under a policy over a victim’s life: see, for example, Re S [1996] 1 WLR 235 and Davitt v Titcumb [1990] Ch 110. Section 5 C8 The Act will bind the Crown. It will apply, for example, if a killer makes a claim against property a victim left to the Crown in a will: see A New Interpretation Act (NZLC R17, 1990), chapter IV. |
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6 Definitions In this Act homicide means the killing of a person, or a child that has not become a person, by another person, directly or indirectly by any means whatever and whether done in New Zealand or elsewhere, that is, (or would be if the killing had been done in New Zealand) an offence against an Act, but does not include (a) a killing caused by a negligent act or omission; or (b) infanticide under section 178 of the Crimes Act 1961; or (c) a killing of a person by another in pursuance of a suicide pact; killer means a person who kills another person (a victim) in such a manner and in such circumstances that the person (the killer) is guilty, either alone or with another person or persons, of the homicide of the victim or would be so guilty if the killing had been done in New Zealand; person means a human being; property means everything that is capable of being owned, whether it is real or personal property, and whether it is tangible or intangible property, and includes any estate or interest in property; suicide pact has the meaning given in section 180(3) of the Crimes Act 1961; victim means a person, or a child that has not become a person, who is killed by a killer; will includes a codicil. Definitions: Act, New Zealand, Acts Interpretation Act 1924 s 4; property, A New Property Law Act (NZLC R29, 1994), para 135, s 3 |
Section 6 C9 Section 6 defines terms the Act uses. C10 Killer and victim are two (invariably related) terms used throughout the Act. A killer is a person who kills another person (a victim) in such a way that the person (the killer) is guilty, either alone or with another person or persons, of the homicide of the victim, or would be so guilty if the killing had been done in New Zealand. Any party to a homicide may therefore be a killer for the purposes of the Act (see Crimes Act 1961 s 66 on parties to offences; and for proof of homicides see sections 13–16). C11 Section 158 of the Crimes Act defines homicide as “the killing of a human being by another, whether directly or indirectly, by any means whatsoever.” Homicide that is culpable is defined by section 160 of the Crimes Act. The definition of homicide used in this Act is based on these Crimes Act provisions. Homicide is defined broadly. The killing of a person (a human being) and the killing of a child that has not become a person are both included (on when a child becomes a human being see Crimes Act s 159). The killing may be direct or indirect, by any means whatever, whether in New Zealand or elsewhere. The killing must have been an offence against an Act (or would have been if it had been done in New Zealand, see section 15(2)). C12 But homicide also excludes (for the reasons in paras 4–14 of this report) four sorts of killing:
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Disentitlements of killers to property 7 Disentitlement of killers under will or intestacy (1) A killer is not entitled to any interest in property arising under a will of the victim. (2) A killer is not entitled to any interest in property arising on the intestacy, or partial intestacy, of the victim. (3) Subject to any express testamentary direction to the contrary, any interest in property that a killer is not entitled to under subsection (1) or (2) is to pass or be distributed as if the killer had died before the victim. Definition: killer, property, victim, will, s 6 |
Section 7 C13 Section 7(1) and (2) bar a killer from taking any interest in property under the will or on a partial or complete intestacy of the victim. C14 Section 7(3) provides that the property a killer is barred from receiving is to be distributed instead as if the killer had died before the victim, unless the will provides (but not implies) otherwise. This provision has the advantage of simplicity and employs a mechanism to be found in other provisions: for example, the Wills Amendment Act 1977 s 2(2)(c), the Simultaneous Deaths Act 1958 s 3(1)(a), and the Accident Compensation Act 1982 s 91(3). This provision (like cl 68A(1)(a) of the Administration Amendment Bill 1979, based on the recommendations of PLERC (Report 24, 1976)) would solve the problem in Re Lentjes [1990] 3 NZLR 193, 194, as Heron J’s decision in the case acknowledges. C15 Section 7(3) prefers the fiction of the killer predeceasing the victim over at least two other ways of identifying who, instead of the killer, will take property. The first alternative, applying only to will gifts, is to confer a discretion on the court to determine and give effect to a victim will-maker’s probable wishes as demonstrated to the civil standard of proof by the trend of the will-maker’s dispositions in wills and extrinsic evidence: see Succession Law: Wills Reforms (NZLC MP2, 1996), 94–97; Rowland, “The Construction or Rectification of Wills to Take Account of Unforeseen Circumstances Affecting their Operation” (1993) 1 APLJ 87–113 and 193–210; Wills Act 1968 (ACT) s 12A(2). The second alternative, applying to both wills and non-probate assets, is to deem a killer to have disclaimed any interest or appointment in his or her favour: compare National Conference of Commissioners on Uniform State Laws, Uniform Probate Code (ULA 1996 Supplement 198–199), §2–803(c), §2–803(e). |
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8 Disentitlement of killer to victim’s non-probate assets (1) A killer is not entitled to any property interest in any non-probate assets of the victim which, but for this subsection, would have passed to the killer on the death of the victim. (2) For the purposes of this section, the non-probate assets of a victim consist of all property passing on the death of the victim because of any of the following transactions: (a) a nomination as defined in section 68A of the Administration Act 1969; and (b) gifts that the victim made in contemplation of death (donationes mortis causa); and (c) trusts settled by the victim that were revocable by the victim in his or her lifetime; and (d) beneficial powers of appointment that were exercisable by the victim in his or her lifetime; and (e) joint tenancies held by the deceased and any other person. (3) Any property interest that a killer is not entitled to under subsection (1) is to pass or be distributed as if the killer had died before the victim. Definitions: killer, property, victim, will, s 6 |
Section 8 C16 Section 8 deals with property transmitted outside the estate disposed of by the will of a victim: the Act calls this property the non-probate assets. C17 Non-probate assets are defined by subsection (2). Compare Succession Law: Testamentary Claims (NZLC PP24, 1996), paras 338–341, draft Testamentary Claims Act 199– ss 48–51, paras C156–C170, and the Estate and Gift Duties Act 1968 s 6 definition of “dutiable estate”. C18 Subsection (1) bars a killer from taking any interest in the victim’s non-probate assets that he or she would otherwise have taken as a result of the victim’s death. C19 Subsection (3) makes provision to identify who, instead of the killer, will take the property. |
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9 Disentitlement to apply under Family Protection Act 1955 A killer is not entitled to apply under the Family Protection Act 1955 for provision out of the estate of the victim. Definitions: killer, victim, s 6 |
Section 9 C20 Under s 5 of the Family Protection Act 1955 courts can currently refuse to make an order in favour of a killer “whose character or conduct is or has been such as in the opinion of the court to disentitle him.” A similar “conduct of the applicant” provision can be seen in s 3(1)(g) of the Inheritance (Provision for Family and Dependants) Act 1975 (UK). We observe that under the UK Act a killer has also been held not to have satisfied either one of the statutory preconditions to claim (see ss 1–2 of the UK Act). Because, the court said, the UK family provision legislation was enacted against the common law bar on killers taking, the court would not treat a killer as inadequately provided for by the victim either “in terms of his will” or “as a result of his intestacy”. The wording of the New Zealand Act is not materially different, and therefore also seems susceptible to this argument: see Re Royse [1985] Ch 22; Dickey (1993) 67 ALJ 788; Cretney (1990) 10 OJLS 289, 295; Family Protection Act 1955 s 4(1); compare the result in Homsy v Yassa and Yassa; the Public Trustee (1993) 17 Fam LR 299 (Family Court of Australia). C21 The Commission acknowledges that, strictly speaking, s 5 of the Family Protection Act might make section 9 unnecessary, but section 9 is included in the Act for two reasons. The first is clarity. The second is that fault-based considerations have played an increasingly limited role in New Zealand family property law: see, for example, Atkin (1979) 10 VUWLR 93, and compare Preble (1995) 13 Law and Inequality 401 and Behrens (1993) 7 Aust J Fam L 9. If the law is amended in the way proposed in Succession Law: Testamentary Claims (NZLC PP24, 1996), there will be no provision comparable to the current s 5. |
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10 Restriction of killer’s claims as to matrimonial property, testamentary promises, and restitution (1) A killer who has a valid claim against the estate of a victim under the Matrimonial Property Act 1963 or a valid claim for restitution for economic benefits conferred on the victim (whether by way of quantum meruit, quantum valebat, as beneficiary under a constructive trust, or otherwise) is entitled in respect of that claim only to a benefit calculated so that (a) the killer is not deprived of the benefit to which the killer is entitled for the services or other economic benefits he or she provided to the victim; but (b) the killer’s benefit is not made more certain, more immediate, or more valuable as a result of the death of the victim. (2) A killer who has a valid claim against the estate of a victim under the Law Reform (Testamentary Promises) Act 1949 is entitled in respect of that claim only to a benefit calculated so that the killer’s benefit is no more certain, more immediate or more valuable than the killer would have been entitled to if the victim had continued to live for the period reasonably expected before the victim was killed. Definitions: killer, victim, s 6 |
Section 10 C22 Section 10 deals with three types of claims the killer may make on or after the death of the victim. Each is based on the killer having contributed something of value to the victim before the killing occurred. The basis of the claim exists independently of the killing. For this reason the Act does not remove the killer’s ability to make a claim. Instead the Act ensures that the death of the victim gives the killer no more certain, immediate, or valuable benefit than that to which he or she would otherwise have been entitled. C23 Section 10(1) is one illustration. It applies to a killer’s claim under s 5 of the Matrimonial Property Act 1963, which applies instead of the Matrimonial Property Act 1976 if, when the claim is made, either spouse has died. (Note that if matrimonial property division proceedings are begun under the 1976 Act and either spouse then dies, then the 1976 Act will continue to govern those proceedings.) The approach in the Australian case of Homsy v Yassa and Yassa; the Public Trustee (1993) 17 Fam LR 299, namely that the homicide did not deprive the killer of existing rights, is consistent with the approach of section 10(1). C24 Section 10(1) also governs claims under the law of restitution for benefits conferred in anticipation of reward. The benefits may, for example, have been given by one de facto partner to another before the de facto partner killed that other partner (for an Australian example, see Troja v Troja (1994) 33 NSWLR 269, 298, 300). Again, the killer’s pre-killing rights are preserved. C25 Section 10(2) provides a third illustration. The victim may have promised to reward the killer in return for services the killer gave to the victim. If the victim promised to reward the killer by making provision in his or her will, after the death of the victim the killer can make a claim under the Law Reform (Testamentary Promises) Act 1949. The value of the reward the victim promised will often be greater because the killer is expected to remain uncompensated until the victim reasonably expects to die, which might be many years in the future. Thus, in order for the killer not to be unjustly enriched, the real value that the killer can properly claim must be discounted to account for the killer’s enjoyment of the reward earlier than promised. |
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11 Disentitlement of killer to enhanced benefits generally (1) This section applies only to property that is neither within the victim’s estate nor a non-probate asset of the victim. (2) A killer whose interest in or claim to any property is affected by the death of the victim is not entitled to any more certain, more immediate or more valuable interest in the property as a result of the death of the victim than the killer would otherwise have been entitled to. (3) Without limiting the generality of subsection (2), a killer is not entitled to benefit as a result of the killing of the victim where (a) the killing prevented the birth of the victim; or (b) the killing altered the order in which it could reasonably have been expected that the killer and the victim would have died; or (c) the killing prevented the victim from achieving any age or satisfying any other condition; or (d) the killing reduced or closed the membership of a class of beneficiaries that included the victim; or (e) the killing shortened the period during which the victim could reasonably have expected to possess an interest in property in which the killer has an interest in remainder. Definitions: killer, property, victim, s 6, non-probate assets, s 8(2) |
Section 11 C26 Section 11 concerns only property that is neither
C27 Section 11(2) states the general principle: a killer must take no more certain, immediate, or valuable interest in the property as a result of the killing (this principle is consistent with the purpose of the Act: section 1 and para C1). It will be for administrators, and others with interests, like killers, or (if ultimately needed) the courts, to settle the detailed application of this principle to the many and varied interests in property to which it can apply (perhaps by contract, see section 4 and para C10). C28 Section 11(3), to assist in this process, provides five common examples of ways in which the killer must not benefit as a result of killing the victim. It may be that the killer benefits but not as a result of the victim’s death. For example, even though the killing may have reduced or closed the membership of a class of beneficiaries that included the killer and the victim, the killer may benefit not because of the death of the victim but because of the exercise of a discretion by a third party. |
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12 Caveat against dealing with land (1) If an interested person claims that an owner of an undivided estate or interest in land as a joint tenant with a deceased person is a killer of that deceased person, the interested person may lodge a caveat in accordance with section 137 of the Land Transfer Act 1952 in respect of the estates or interests of the killer and the deceased. (2) So long as a caveat under this section remains in force, the District Land Registrar must not register a transmission on survivorship to the killer of any estate or interest affected by the caveat. (3) The provisions of the Land Transfer Act 1952, other than section 141(1), apply to a caveat lodged under this section. (4) Subsections (2) and (3) of section 141 of the Land Transfer Act 1952 apply, subject to any necessary modifications, in respect of a caveat lodged under this section. Definition: killer, s 6 Evidential provisions 13 Evidential effect of conviction in New Zealand (1) The conviction in New Zealand of a person for the homicide of another person or a child that has not become a person is conclusive evidence for the purposes of this Act that the person is guilty of that homicide. (2) A certificate issued under s 148A of the Criminal Justice Act 1985 is conclusive evidence that a person convicted of an offence of unlawfully killing another person or a child that has not become a person is for the purposes of this Act guilty of the homicide of that other person or child that has not become a person. Definitions: homicide, person, s 6; New Zealand, Acts Interpretation Act 1924 s 4 Note: As to when a child becomes a person (human being), see Crimes Act 1961 s 159 |
Section 12 C29 Section 12 allows an interested person to lodge a caveat under s 137 of the Land Transfer Act 1952 against transmission by survivorship of the estates or interests in land held as joint tenants by victim and killer. Section 13 C30 The common case is where a killer is convicted in New Zealand of homicide of a victim. If this occurs, then under present law, in later civil proceedings the conviction is admissible but not presumptive evidence of the fact that the killer is responsible for the homicide of the victim: Evidence Amendment Act (No 2) 1980 s 23. C31 The Commission’s proposed evidence code may recommend a general change to the law under which convictions would be admissible and presumptive evidence (a conviction was so treated in Re Lentjes [1990] 3 NZLR 193; see Law Commission, “The Rule in Hollington v Hewthorn”, unpublished, 10 June 1997). Section 13(1) of the Act, for clarity and efficiency (especially important where smaller estates are in issue) goes further in making convictions conclusive proof in proceedings under the Act that the killer is guilty of the homicide of the victim. C32 If a court on or after sentencing a killer certified in writing (under the Criminal Justice Act 1985 s 148A, inserted by section 16 of this Act) that the killing was a homicide for the purposes of the draft Act, then the certificate is conclusive evidence of that: section 13(2). The present law (Evidence Amendment Act (No 2) 1980 s 27) provides for a means of proving a conviction of any person in later civil proceedings. By contrast, s 148A provides a means of proving a conviction and certifying that conviction as a homicide for proceedings under the draft Act. Section 148A may be made unnecessary by a rationalising provision of the Commission’s proposed evidence code that will provide first, for a means of proving convictions in all later proceedings, and second, for the certification of convictions as relevant for the purposes of a number of particular proceedings. |
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14 Evidential effect of acquittal in New Zealand The acquittal in New Zealand of a person on the grounds of that person’s insanity in respect of the homicide of another person or a child that has not become a person is conclusive evidence for the purposes of this Act that the person is not guilty of that homicide. Definitions: homicide, person, s 6; New Zealand, Acts Interpretation Act 1924 s 4 Note: As to when a child becomes a person (human being), see Crimes Act 1961 s 159 |
Section 14 C33 Section 14 provides that an acquittal by reason of insanity (see s 23 of the Crimes Act 1961 and, for the consequences, Part VII of the Criminal Justice Act 1985) is conclusive evidence in later civil proceedings under the Act that a person is not responsible for the homicide of the person killed. In these cases the person acquitted must after all have satisfied the court on the balance of probabilities that he or she was not sane (compare, where there is no prosecution in New Zealand, section 15(4)). To treat the acquittal as conclusive is also consistent with the likely approach of the courts under the present law of succession: Re Pechar [1969] NZLR 574; Re Batten’s Will Trust (1961) 105 SJ 529; Re Pitts [1931] 1 Ch 564; Re Houghton [1915] 2 Ch 173. |
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15 Evidence if no criminal prosecution in New Zealand (1) This section applies where a person who is alleged to be guilty of the homicide of another person or a child that has not become a person has not been prosecuted in New Zealand in respect of that homicide, whether or not the person has been prosecuted, convicted or acquitted elsewhere. (2) A court may decide for the purposes of this Act whether the killing of a person or a child that has not become a person has taken place and, if so, whether if the alleged killer had been prosecuted in New Zealand, he or she (a) would be guilty of the homicide of that person or child that has not become a person; or (b) would by reason of insanity not be guilty of the homicide of that person or child that has not become a person. (3) A person who alleges that another person is guilty of homicide for the purposes of this Act must satisfy the court on the balance of probabilities. (4) A person who alleges that he or she is not guilty of the homicide for the purposes of this Act by reason of insanity must satisfy the court on the balance of probabilities. (5) The conviction elsewhere than in New Zealand of a person in respect of homicide is for the purposes of this Act admissible evidence concerning whether the person is guilty or not guilty of the homicide and is to be given such weight as the court may determine. Definitions: homicide, person, s 6; insanity, Crimes Act 1961 s 23; New Zealand, Acts Interpretation Act 1924 s 4 Note: As to when a child becomes a person (human being), see Crimes Act 1961 s 159 |
Section 15 C34 Section 15 concerns cases where a person who is alleged to have killed another person, or a child that has not become a person, has not been prosecuted in New Zealand in respect of that homicide: section 15(1). This may occur for a number of reasons. For example, the alleged killing may have occurred overseas (the killer may actually have been prosecuted overseas and convicted or acquitted). Alternatively if the alleged killing occurred in New Zealand the killer may later have died, or be unfit to be tried. C35 In these cases section 15(2) clarifies that courts may decide for the purposes of the Act that, if the alleged killer had been prosecuted for the homicide in New Zealand, the alleged killer
C36 Sections 15(3) provides that a person who alleges that another person is guilty of a homicide for the purposes of the Act must satisfy the court on the balance of probabilities. In practice the standard applied in civil proceedings where a serious offence is alleged is often the “civil standard of proof on a balance or preponderance of probabilities, but remembering more than ever the gravity of the issues involved”: Re Pechar [1969] NZLR 574, 580 (emphasis added). The qualification means that this standard may vary in its requirements according to the gravity or seriousness of the offence alleged (eg, in proceedings under the Act, offences of killing will be alleged, but in other proceedings, lesser offences may be alleged, eg, a petty theft). An alternative, perhaps more predictable, third standard of proof established in America but new to New Zealand would be that of “clear and convincing evidence”: for discussions of this standard, see, for example, McCormick on Evidence (4th ed, West, St Pauls, 1992), 959–961; Back v National Insurance Co of NZ Ltd [1996] 3 NZLR 363, 370–371; compare Mahoney [1997] NZ Law Rev 62–64. The third standard would be between those that usually apply in civil and criminal proceedings. The Commission is considering whether “serious” allegations in any civil proceeding (eg, that a person is guilty of any more serious criminal offence) should be required to be proved by “clear and convincing evidence”. C37 Section 15(4) provides that a person who alleges that he or she is not guilty by reason of insanity of a homicide for the purposes of the Act must satisfy the court on the balance of probabilities (compare s 23 of the Crimes Act 1961, and see also section 14, and para C33). C38 Section 15(5) provides that a conviction outside New Zealand of a person in respect of homicide, is for the purposes of the Act admissible to show that a person is or is not guilty of the homicide and is to be given such weight as the court decides. The limited provisions of s 12A of the Evidence Act 1908 provide that convictions from the United Kingdom, Australia and Canada may (but need not) be proved for New Zealand courts by fingerprints. Section 12A(4) of the Evidence Act 1908 allows for proof by this means (fingerprints) to be extended by regulation to convictions from other countries, but to date no regulations appear to have been made for this purpose. Section 12A and provisions on related matters will be reveiwed in the Commission’s proposed evidence code. |
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Amendments to other enactments 16 Amendments to other enactments The enactments specified in Schedule 1 are amended in the manner indicated in that Schedule. SCHEDULE 1 ENACTMENTS AMENDED See section 16 Administration Act 1969 (1969/52) after section 5 Insert section 5A “5A Killer not competent to be granted administration A person who is a killer of a victim for the purposes of the Succession (Homicide) Act 199– is not competent to be granted and cannot be granted (a) probate of the victim’s will; or (b) letters of administration of the estate of the victim, with or without a will annexed.” |
Section 16 C39 Section 16 provides that the three Acts in Schedule 1 are amended as Schedule 1 indicates. Schedule 1 C40 First, Schedule 1 inserts a new section 5A in the Administration Act 1969. The new section supplements and clarifies ss 6, 11(1)(c) and 53 of the Adminsitration Act by providing that a person who is a killer of a victim for the purposes of the draft Succession (Homicide) Act is not competent to be granted and cannot be granted probate of a victim’s will, or letters of administration of the estate of a victim, with or without a will annexed. For examples, see In Re Crippen [1911] P 108 (executor of dead husband who killed wife applied unsuccessfully for administration of wife’s estate) and Re Baker (unreported, HC, Napier, 5 April 1991, CP 44/90) (victim’s will named husband who was also killer as executor if he survived her for 30 days – it was not disputed that killer could not in these circumstances be granted probate). Compare In the Goods of Glynn; Ireland and the Attorney-General v Kelly and Concannon [1992] ILRM 582, [1992] 1 IR 361. In this case the defendant executor murdered the testator’s sister, who under the will had a life interest in property in which the executor had an interest in remainder. The killing therefore accelerated the executor’s enjoyment of his interest in remainder in the property. The court held that these facts were “special circumstances” under s 27(4) of the Succession Act 1965 (Ireland) that justified the discharge of the defendant as administrator of the testator’s estate and the appointment of the Chief State Solicitor to that office instead. See also Re Keitley [1992] 1 VR 583, where the Supreme Court of Victoria granted to a woman probate of her violent husband’s estate even though she had pleaded guilty to his manslaughter, because “her level of moral culpability was markedly diminished”. |
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section 47 Insert in subsection (1) after paragraph (e) “(ea) under the Succession (Homicide) Act 199–.” Insert after subsection (4) “(5) Subsection (4) does not apply to protect an administrator who, at the time of making a distribution, had reason to suspect (a) that the death of the deceased was a homicide; and (b) that the person to whom the distribution was made was a killer of the deceased.” Criminal Justice Act 1985 (1985/120) after section 148 Insert section 148A “148A Certificate of conviction for Succession (Homicide) Act 199– (1) On or at any time after sentencing a person for an offence against any Act of unlawfully killing another person or child that has not become a person, a court may certify that for the purposes of the Succession (Homicide) Act 199– the person convicted is guilty of homicide of that other person or child that has not become a person. (2) A court may issue a certificate under this section on the application of any interested person or on its own initiative.” Proceeds of Crime Act 1991 (1991/120) section 24 Number existing section as subsection (1) Insert after subsection (1) “(2) Notwithstanding subsection (1), sections 25 to 29 of this Act do not apply to interests in or claims against property which a person who is a killer under the Succession (Homicide) Act 199– is not entitled to claim or receive because of that Act.” |
C41 Second, to protect administrators’ distributions under the Act, Schedule 1 inserts in s 47 of the Administration Act 1969 two new provisions. A new paragraph, (1)(ea), would clarify that an administrator’s distributions under the draft Act would be protected, for example, in a case where a killer convicted of homicide is later granted a full pardon (eg, Chemis (1889), and Thomas (1979)) which has the effect of deeming the killer “never to have committed the offence”: Crimes Act 1961 ss 406–407. However, a new subsection, 47(5), inserted in the Administration Act would also provide that administrators act at their peril if, when they make a distribution, they have reason to suspect that the death of the deceased was a homicide, and that the person to whom the distribution was made was a killer of the deceased. C42 Third, Schedule 1 amends Part IX of the Criminal Justice Act 1985 by inserting a new section, 148A. The new section would allow criminal courts, on or at any time after sentencing, to certify that an offence of unlawful killing is a homicide for the purposes of the draft Succession (Homicide) Act 199–. Any certificate is conclusive evidence of that fact: section 13(2) and para C32. Section 148A makes clear that any interested person (eg, a defendant, an estate or trust beneficiary, or an administrator or trustee) may apply for a certificate, or the court may simply issue a certificate on its own initiative. C43 Fourth, Schedule 1 amends s 24 of the Proceeds of Crime Act 1991 to clarify that pecuniary penalty orders under that Act do not apply to property to which the draft Succession (Homicide) Act 199– applies. In this special context profits which killers are disentitled to take should not be forfeited to the state, but distributed instead to other beneficiaries of the victim’s or another’s estate: Watts [1990] NZ Rec LR 330, 352. This is consistent with the intention of the Convicts (Forfeiture) Act 1871 (NZ), the Criminal Code Act 1893 (NZ) s 389, the Crimes Act 1908 s 413 and the Acts Interpretation Act 1924 s 20(f). |
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Matters not provided for in the draft Act C44 The draft Act makes no provision for the following matters:
– was before a homicide a guardian of a victim’s child; or For an example, see Re K (1994) FLC 92–461 (Family Court of Australia), where a husband, awaiting trial for the murder of his wife, sought custody of a child of the marriage being cared for by the dead wife’s parents. |
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URL: http://www.nzlii.org/nz/other/nzlc/report/R38/R38-DRAFT.html