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Endnotes

^[1]Kersley (ed), Broom's Legal Maxims (10th ed, Sweet and Maxwell, London, 1939), 191_200. Related but more generally applicable maxims are ex turpi causa non oritur actio (no action should arise from an unworthy cause), and that a plaintiff seeking the aid of a court of equity must have clean hands, because the court, as the judgment in Bridgeman v Green notes, will require that "the hand receiving [property] be ever so chaste": (1757) Wilm 58, 65, (1757) 97 ER 22. Compare the American Law Institute's Restatement of Restitution (1936), ¶ 187_189.

^[2]Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147; Re Lentjes [1990] 3 NZLR 193.

^[3]Re Cash (1911) 30 NZLR 577; Re Pechar [1969] NZLR 575.

^[4]Probate is the process of authenticating the last will of a person who has died and being granted authority by the will to gather and distribute that person's property.

^[5]Hall v Knight & Baxter [1914] P 1; Re Baker (unreported, HC, Napier, 5 April 1991, CP 44/90).

^[6]Re Crippen [1911] P 108.

^[7]For a discussion of estate sizes, see Succession Law: Testamentary Claims (nzlc pp24, 1996), para 21.

^[8]Conviction and Sentencing of Offenders in New Zealand 1983_1992 (Department of Justice, Wellington, 1993), table 2.5, 28; compare the lower but still significant numbers for the comparable period Conviction and Sentencing of Offenders in New Zealand 1986_1995 (Department of Justice, Wellington, 1996), table 2.5, 32. By contrast, total homicide offences reported to the police increased from 120 in the year ended 31 December 1987, to 141 in the year ended 31 December 1992: Wanganui Computer Crime Statistics.

^[9] An analysis of 39 homicides in 1989 in the upper half of the North Island indicated that about half occurred in a domestic setting: Gray, Family Violence _ A Background Paper (Gray Matter Research Ltd, Wellington, 1989). This is comparable with overseas studies, eg: Gelles, The Violent Home: A Study of Physical Aggression between Husbands and Wives (Sage Publications, Beverly Hills, 1974) (25% of American homicides in domestic situations involve people in a family-type relationship); Home Office, Criminal Statistics: England and Wales 1992 (HMSO, London, Cmnd 2410, 1993) (in approximately a

third of English and Welsh homicides the victim is the suspect's cohabitant or lover or another relative of the suspect); Easteal, Killing the Beloved (Australian Institute of Criminology, Canberra, 1993) (25% of the sample of 629 Australian homicides between 1990_1991 were between adult sexual intimates); Wallace, Homicide: The Social Reality (NSW Attorney-General's Department Bureau of Crime Statistics and Research, Research Study No 5, 1986) (42.5% of NSW homicides between 1968_1981 occurred in a domestic context, 25% of this 42.5% involved one spouse or de facto partner killing another, 73% of this 25% were a husband or male de facto partner killing a wife or female de facto partner).

^[10]Ritchie, Violence in New Zealand (2nd ed, Huia Publishers, Wellington, 1993), 48_49.

^[11]In October 1976 the Public Trustee identified eight estates it had administered between 1959 and 1974 in which homicidal heirs problems had arisen, see pages 5_6 of the report mentioned in note 13.

^[12]One was In the estate of Hunter: Farrell v Public Trustee (unreported, HC, Auckland, 20 November 1996, M505/94), on which see "Killer wants victim's money", Dominion, 9 January 1997, 6.

^[13]The Effect of Culpable Homicide on Rights of Succession (1976, Report 24). An Administration Amendment Bill 1979 included provisions based on the report, but these provisions were not proceeded with. Maxton wrote in (1988) 13 NZULR 217, 221 that "[f]or the difficulties in this area to be resolved in accordance with clear principles of law and not by public policy, legislation seems essential. That no action has been taken to date in respect of this report of the Committee is most unfortunate."

^[14]In this example, the life tenant has an interest in the property until he or she dies, and the remainderman has an interest in the same property after the death of the life tenant.

^[15]See section 6 of the draft Succession (Homicide) Act 199_ included in this report. In this introduction and the commentary to the draft legislation, references to sections of the draft Act appear in italics.

^[16]"Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever": Crimes Act 1961 s 158. Homicide that is culpable is defined by s 160.

^[17]Compare the Accident Rehabilitation and Compensation Insurance Act 1992 s 82(1)_(2): payments to a killer of compensation, grants or allowances under the Act because a victim died are barred only if the killer is (or would be, if tried in New Zealand) convicted of the murder of the victim as defined in the Crimes Act 1961 ss 167_168. Before s 82(1)_(2) of the 1992 Act (and its forebear, the proviso to s 91(2) of the Accident Compensation Act 1982), the proviso to s 138(1) of the Accident Compensation Act 1972 served the same purpose, but referred instead only to those killers who intended to cause death or serious bodily harm, or were reckless about doing so. The 1976 PLERC report recommended a definition based on the s 138(1) proviso that became the (unenacted) Administration Amendment Bill 1979 cl 68A(2).

^[18]See Re Crippen [1911] P 108.

^[19]For discussion, see, for example, Kenny, "Forfeiture Act 1982" (1983) 46 MLR 66; Kenny, "Forfeiture Act 1982" (1982) 132 NLJ 897; Mathews, "Property, Pensions and Double Punishment: The Forfeiture Act 1982" [1983] JSWL 141; Scottish Law Commission, Miscellaneous Topics in the Law of Succession (1986) Consultative Memorandum No 71, paras 2.15_2.18, 14_17; Reed, "Does Crime Pay?" (1988) 132 SJ 238_240; MacDonald, "The Unworthy Heir" (1989) 1 Jur Rev 108_110; Touchstone, "Recent Developments of the Forfeiture Rule" (1991) 135 SJ 109; Cretney, "The Forfeiture Act 1982: The Private Member's Bill as an Instrument of Law Reform" (1990) 10 OJLS 289. The 1982 UK Act is the model for the Australian Capital Territory Forfeiture Act 1991 and was also considered for adoption in Victoria: Law Reform Advisory Council, "`The Forfeiture Rule': Discussion Paper" (unpublished, 1995). Compare Uniform Probate Code (1969), and (1990) revision, § 2_803.

^[20]Compare, for example, Re H [1990] Fam Law 175 (Ch D) with Jones v Roberts [1995] Fam Law 673 (Ch D): Buckley, "Manslaughter and the Forfeiture Rule" (1995) 111 LQR 196.

^[21]An example is the defendant convicted of this offence who had helped his quadriplegic friend to commit suicide: R v Ruscoe (1992) 8 CRNZ 68; Downey [1995] NZLJ 88; Hampton [1995] NZLJ 166_167.

^[22]The effect of this aspect of the criminal law is of course that a person who lacks the physical capacity to commit suicide can be killed only with the decisive help of another that must always amount to culpable homicide.

^[23]The decision at first instance of Rolfe J on the distinctive facts of Permanent Trustee Company Ltd v Freedom From Hunger Campaign (1991) 25 NSWLR 140 (NSW Supreme Ct, Equity Division), however, is an example of the contrary view.

^[24]See, for example, Re G (unreported, HC, Dunedin, 13 December 1996, M126/96); compare the House of Lords' decision in Airedale NHS v Bland [1993] AC 789, on which see Keith, "Policy and Law: Politicians and Judges (and Poets)" in Gray and McClintock (eds), Courts and Policy _ Checking the Balance (Legal Research Foundation and Brookers, Wellington, 1995), 117, 148_155; Rt Hon Lord Goff of Chieveley, "A Matter of Life and Death" (1995) 3 Med LR 1. More recently see the Official Solicitor's Practice Note of 26 July 1996: [1996] 4 All ER 766_768, and the decision of the Inner House of the Court of Session in Law Hospital NHS Trust v The Lord Advocate (1996) SLT 848; (1996) 4 Med LR 300.

^[25]See, for example, Evans (1985) 2 NSWLR 188; Re K [1985] Ch 85, [1986] Ch 180; Re Keitley [1992] 1 VR 583; Troja v Troja (1994) 33 NSWLR 269.

^[26]See, for example, R v Gordon (1993) 10 CRNZ 430, and more recently see Ruka v Department of Social Welfare [1997] 1 NZLR 154: Dawkins [1997] NZ Law Rev 50_56.

^[27]Crimes Act 1961 s 48, provides for self-defence as a complete defence to otherwise culpable homicide, for example in R v Lavallee (1990) 55 CCC (3d) 97: Shaffer "The battered woman syndrome revisited: some complicating thoughts five years after R v Lavallee" (1997) 47 University of Toronto LJ 1.

^[28]Crimes Act 1961 ss 169_170, provides for provocation as a partial defence that only reduces what would otherwise be a murder to a manslaughter, for example R v Ahluwalia [1992] 4 All ER 889. Compare Thornton (No 2) [1996] 1 WLR 1174 (CA); Padfield [1996] 55 CLJ 421_422.

^[29]For example in the South Australian case R v Runjanjic (1991) 56 SASR 114.

^[30]See, for example, Mendelson, "Medico-Legal Aspects of the `Right to Die' Legislation in Australia" (1993) 19 MULR 112; Webb, "The Politics of `Medicide' in New Zealand: A Cautious Proposal for Physician Aid-In-Dying" (1994) 5 Canta LR 438; Otlowski, "Active Voluntary Euthanasia: Options for Reform" (1994) 2 Med LR 161; Senate of Canada, Proceedings of the Senate Special Committee on Euthanasia and Assisted Suicide (First Session, 35th Parliament, 31 May 1995, Issue No 33, chaired by the Hon Joan Neiman) Zdenkowski, "The International Covenant on Civil and Political Rights and Euthanasia" (1997) 20 UNSWLJ 170; Sayers, "Euthanasia: At the Intersection of Jurisprudence and the Criminal Law" (1997) 21 Crim LJ 80; South African Law Commission, "Euthanasia and the Artifical Preservation of Life" (Project 86, Discussion Paper 71, 1997); Manning, "Self-Defence and Provocation: Implications for Battered Women Who Kill and for Homosexual Victims" (NSW Parliamentary Library Research Service, Briefing Paper No 33/96, December 1996); Beri, "Justice for Women Who Kill: A New Way?" (1997) 8 Aust Fem LJ 113.

Mercy killing would usually escape punishment by the criminal law only in cases where a killer had no directly conflicting personal pecuniary interest in the death of the person killed. For example, the Australian Northern Territory Rights of the Terminally Ill Act (1995) (now repealed by the Federal Euthanasia Laws Act (1997) Cth), required a certifying medical practitioner to have had no reason to believe that he or she, a counter-signing practitioner, or a close relative or associate of either of them, would gain a financial advantage as a result of the death of the patient. Similarly in New Zealand the proposed Death with Dignity Bill 1995 (on 16 August 1995 denied 61/29 a first reading by members of the 44th Parliament) would not have allowed the required witnesses to an incurably ill person's written request to have his or her life terminated to be relatives of the ill person or people with a pecuniary interest in the ill person's estate. The Commission considered, but rejected as precipitate and perhaps unworkable, proposed exceptions based on mercy killers showing that they had no pecuniary motive to kill their victims: see, for example, Berk (1992) 67 Tulane LR 485, 508; Sherman (1993) 61 Cinn LR 803; McLennan (1996) 113 South African LJ 143_146. The Commission notes PLERC's conclusion that "no attempt should be made to legislate in the special case of the mercy-killing of a victim of a painful terminal illness": (Report 24, 1976), para 15. A media statement by the Minister of Justice the Hon David Thomson on 2 March 1977, and the (unenacted) Administration Amendment Bill 1979, both took the same approach.

^[31]For a purported example, see Lundy v Lundy (1895) 24 SCR 650: Simester (1992) E & TJ 217; for an example of actual forgiveness, see Re Mona Boyd McCallum or Gilchrist [1990] SLT (notes) 494.

^[32]A "gift over" is one that operates only if a prior gift is not, at the time for decision, meant to operate. For example, if a gift in a will reads, "All to my husband, but if he dies before me, then to my child", the "gift-over" is the gift to the child which, if read literally, operates only if, when the will-maker died, the husband was in fact already dead.

^[33]A tontine is a financial arrangement (such as an insurance policy) in which a group of participants share advantages on such terms that, upon the default or death of any participant, that participant's advantages are distributed among the remaining participants until only one remains, whereupon the whole goes to him or her; or on the expiration of an agreed period, the whole goes to those participants remaining at that time.

^[34]Ames, Lectures in Legal History (Harvard University Press, Cambridge, 1913), 321; Wade, "Acquisition of Property by Killing Another _ A Statutory Solution" (1936) 49 Harv LR 715; Scott and Fratcher (eds), The Law of Trusts (4th ed, Little Brown and Co, Boston, 1987), vol 5, para 493.2.

^[35] We note that PLERC made the same recommendation in The Effect of Culpable Homicide on Rights of Succession (1976, Report 24), para 13(c), cl 68A(1)(b).