Introduction

The principle

1 _Nobody, an ancient legal maxim proclaims, may profit from his or her wrongful conduct: nullus commodum capere potest de injuria sua propria.¹ The justice of this principle is self-evident and axiomatic. It applies in many different circumstances. In relation to succession to property on death, it disentitles a killer from benefiting economically as a result of the death of the person killed. It is well-settled law in New Zealand (and almost all legal systems) that a killer is not entitled to take any benefit under a victim’s will,² or if no will disposes effectively of all of a victim’s estate, on a victim’s intestacy.³ As an English court said in 1914, “no man shall slay his benefactor and thereby take his bounty” (Hall v Knight & Baxter [1914] P 1, 7). A killer is also incompetent to be granted probate ⁴ as an executor of a victim’s will,⁵ or to be appointed administrator of a victim’s estate.⁶ As part of its review of the law of succession the Commission recommends that Parliament codify New Zealand’s homicidal heirs laws in one plain language statute.

WHY LEGISLATION IS NEEDED

2 If the present law is well settled, why is an Act of Parliament needed? Do problems arise often enough to require a statute?

While the general principle is well settled, precisely how it should be applied in particular circumstances is often uncertain. For example, to exactly what categories of unlawful killing should the principle apply? If a killer is debarred from receiving property, who should receive that property instead? What happens if before the killing a killer had matrimonial or de facto partners’ property rights against the estate of his or her victim?
The Commission accepts that without legislation New Zealand courts would, considering each problem as it arises, decide eventually all the unanswered questions. But leaving it to the judges has its price. It would be preferable, if practicable, to spare estates (often of only modest value)⁷ the considerable expense of legal proceedings. Resolving these proceedings often requires the involvement of many legal counsel. For example, in Re Pechar [1969] NZLR 575 (admittedly a case in which three people were killed) six different interests were separately represented. There are also the problems of delay. The judgment in Pechar was delivered 4 years after the killing. In Re Lentjes [1990] 3 NZLR 193 a similar period elapsed between the killing and the judgment.
Homicidal heirs cases arise more often than may at first be thought. From 1982 to 1992 the number of culpable homicides and attempted homicides almost doubled, from 53 to 103,⁸ and about half of these occurred in a domestic setting.⁹ Culpable homicide that was murder increased steadily in New Zealand between 1960 and 1985: from an average of six per year between 1960 and 1964, to an average of 27 per year between 1980 and 1984.¹⁰ The Public Trust Office alone identified eight estates it had administered involving problems of homicidal heirs in the last 10 years or so.¹¹ Even over the brief period from November 1996 to March 1997 two current High Court proceedings involving homicidal heirs problems were made known to the Commission.¹²
Legislation would remove doubts about whether judge-made rules concerning homicidal heirs can, as a matter of constitutional law, override properly the express provisions of the statute that governs distribution on intestacy (the Administration Act 1969).

3 For these reasons the Commission recommends that Parliament enact a code setting out, in plain language, all homicidal heirs rules. A similar conclusion was reached by the New Zealand Property Law and Equity Reform Committee (PLERC) in 1976.¹³ Our objective is a statute that in most cases would enable administrators and trustees to carry out their functions without the need for recourse to court proceedings. Fact situations of course vary infinitely, and it will be seen that in certain contexts the recommended statute can do no more than lay down the governing principles, leaving precise quantification to be determined in the particular case. Consider, for example, the calculation of the economic benefit to a remainderman who kills a prior life tenant.¹⁴ But even in these more complex cases, the scope of disputes would be reduced in a useful way by the statute we recommend.

KILLINGS AFFECTED

Generally

4 It is the present criminal law that should define the killings that bar killers from profiting. The definition of killer ¹⁵ the Commission recommends is based on the Crimes Act 1961 definition of homicide.¹⁶ The Commission excludes, however, negligent killings, assisted suicides (see paras 7–9), suicide pacts (see para 10), and infanticide (see para 13), and includes the killing of a child that has not become a person (see para 13).

Killing by a negligent act or omission

5 The unhappy husband who, by his negligent ¹⁷ driving of the family car, kills his wife in the seat beside him should not be treated in the same way as such a cold-blooded murderer as Crippen.¹⁸ The abhorrence attaching to profiting from intentional killing does not extend to accidental killing; as the adjective “negligent” suggests, the law of succession, whatever its terms, can provide no conceivable incentive for killings by negligent (rather than conscious) act or omission.

6 This seems to the Commission a clearer and more workable solution than the discretion conferred by the Forfeiture Act 1982 (UK),¹⁹ which permits courts to modify the rule in cases of homicide other than murder, but with no guidelines beyond “the justice of the case”. There seems to be profound disagreement among English judges as to how the statute is to be applied,²⁰ in part because no clear principle dictates how “wrongful” a wrongful killing must be before the bar on profiting should apply. In Troja v Troja (1994) 33 NSWLR 269, 299 an attempt to confer a comparable discretion by judicial decision, led Meagher JA to observe that

[t]here is something a trifle comic in the spectacle of Equity Judges sorting felonious killings into conscionable and unconscionable piles.

Ultimately the question whether a particular class of killing is sufficiently abhorrent to attract the application of the bar on profits is one of policy, rather than one of legal technique. For this reason it should be settled clearly and completely by Parliament.

Assisted suicides and “mercy killings”

7 Sometimes sympathy can be felt for deliberate killers. One example is the “mercy killer”. One consequence of adopting the Crimes Act 1961 definition of homicide is that the definition of killer that the Commission recommends does not include a person who has committed the offence (under s 179) of assisting another person to commit suicide.²¹ There is a clear line between assisting suicide and murder: it is whether it is the killer or the victim who decides that the victim is to die.²² As the Court of Appeal said in R v Stead (1991) 7 CRNZ 291, 295 when sentencing for manslaughter a devoted son who, in a disturbed state of mind, was influenced by his mother’s wish to end her life “[i]n the end it was he, not she, who decided that she would die and she did”. It may well be that the exclusion of the offence of assisting suicide from the Crimes Act definition of homicide reflects not a policy distinction but a drafting technique. Even so, in the Commission’s view, the degree of abhorrence attaching to the crime of assisting suicide does not warrant the application of the bar on profiting.

8 We must deal with two objections to the view expressed about assisting suicide in the previous sentence.

First is the objection that rights of succession may depend on whether the police elect to lay an assisting suicide or a murder charge. The answer is that under our draft Act a conviction on an assisting suicide charge would not preclude a discontented party from endeavouring to establish homicide in civil proceedings.
Second there is the problem (common to all discussions of mercy killing) that the party assisting suicide may have some motive of self-interest. The Commission considered a solution under which one who assisted suicide might, if challenged, be debarred from profiting unless the person could establish that his or her action had no economic motivation. However, the Commission rejected this approach as being unworkable in many, perhaps most, cases.²³ For example by precisely what means could a devoted person who assisted the suicide of a spouse in agony with terminal cancer establish that there was absolutely no element of economic benefit in his or her motivation?

9 Finally there is the argument that, if assisting suicide attracts insufficient abhorrence for the bar on profits to apply, why do comparable considerations not apply to mercy killing that amounts to murder? Part of the answer is to be found in the very clear distinction already referred to between assisting suicide (where the decision to die is that of the deceased) and murder (where the decision is that of the killer). That the killer’s motive in killing the victim was to relieve the victim’s suffering is not a defence to a charge of murder or manslaughter. So the issue is whether there should be a special rule for a deliberate killer who meant well, bearing in mind that s 63 of the Crimes Act 1961 provides that no-one has the right to consent to the infliction of death upon himself or herself. The Commission has not overlooked the cases, commencing with Re L: Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235,²⁴ in which hospitals have been told that they need not strive officiously to keep alive patients in a “living dead” state – existing only with the aid of life support systems – and that terminating such support would not be homicide. These cases seem to the Commission to have no relevance to the situation of the deliberate killer who, having decided to end the life of another human being, then seeks to benefit from the victim’s estate. It should not be overlooked that the court in Re L emphasised that “the protection of life is, and will remain, a primary function of the criminal law” (244).

10 The exclusion from the bar of the defendant who assists a suicide requires as a matter of consistency the exclusion of the defendant who kills in pursuance of a suicide pact: Crimes Act 1961 s 180(3).

Battered women who kill

11 Another example where sympathy can be felt is that of a battered woman who deliberately kills her abuser.²⁵ In R v Oakes [1995] 2 NZLR 673 the Court of Appeal acknowledged (not for the first time)²⁶ battered women’s syndrome: the unquestionably real set of effects on the mind and will of women that being the target of prolonged physical and psychological abuse can have. The court explained that

[t]he fact that a woman suffers from the syndrome is not in itself a defence; the syndrome is not in itself a justification for the commission of a crime. But where it exists – and whether it exists will be a matter for evidence in every case – the woman’s actions, and her culpability for them, must be assessed in the light of contemporary knowledge of its effects on the mind and the will. It is in relation to those effects, the effects on mind and will, that the syndrome becomes relevant (675).

Under the present criminal law the syndrome may be relevant to an issue of self-defence,²⁷ provocation²⁸ or duress.²⁹ In R v Oakes the court stressed that the present criminal law treats as paramount protecting human life: “It hardly needs to be said that a battered woman has no more right to kill or injure than any other person, man or woman (675)”. Self-defence is a complete defence to a charge of murder or manslaughter, so that if the syndrome is established as providing this defence there is no conviction, and no question of the application of the bar on profiting can arise. Under New Zealand law, duress or compulsion is not a defence to a charge of homicide. Provocation is not a complete defence but may be a ground for reducing murder to manslaughter. The question comes down to whether there is any principled basis for not applying to a battered woman the bar on profiting that applies to every other killer who establishes provocation.

Changes to the criminal law?

12 The succession legislation this report recommends is an inappropriate vehicle for advocating reforms (which may or may not be desirable) to the present criminal law of homicide (to which our draft Act is ancillary). If, after a thorough review, Parliament sees fit to change the criminal law so that, in defined circumstances and with adequate protections for the sanctity of life, killings by, for example, battered women and mercy killers are more often lawful,³⁰ then the terms the draft Act uses are defined in such a way that the bar on profits would no longer apply. Ultimately, the question whether a particular class of killing is sufficiently abhorrent to attract the bar on profits is one of policy that should be settled by Parliament (see para 6).

Infanticide and killing an unborn child

13 The Commission recommends that the bar on profits not apply to infanticide (which, because it is part of the Crimes Act 1961 definition of culpable homicide, requires an express exclusion). Conversely the bar on profits should apply to the offence under s 182 of killing an unborn child. The death of a neonate or a foetus will, of course, affect property entitlement so as to benefit a killer only if the terms of a trust so provide. It seems to the Commission that infanticide is sufficiently analogous to an acquittal on the ground of insanity for the bar on profiting not to apply. No similar considerations apply to the s 182 offence.

Effect of victim’s consent to killer taking

14 We have not excluded killings for which the person killed, after fatal injury, but before death, forgave the killer.³¹ The principle that the draft Act would apply is based on considerations of public policy. There will commonly in practice be a question mark over a victim’s purported forgiveness, given that person’s likely physical and emotional state. It is always open to the substituted beneficiaries as a matter of grace to restore to the killer property to which he or she would otherwise have been entitled. Apart from any other reason, these circumstances appear too rare to merit an exclusion provision.

PRESERVING KILLERS’ PRIOR AND INDEPENDENT RIGHTS

15 Care must be taken to ensure that the principle that a killer may not benefit as a result of a victim’s death is not extended to deprive a killer of what was his or hers before and apart from a killing. As a result section 10 – dealing with matrimonial property, testamentary promises, and restitution sought by a killer – and section 11 – dealing with other interests, like those of a beneficiary under a trust – carefully preserve, but limit a killer’s rights to, the killer’s pre-killing entitlement. A particular source of difficulty in this context is property that is the subject of a joint tenancy (see paras 18–20).

EVIDENCE

16 Because an objective of the proposed legislation is (where possible) to enable administrators and trustees to act without recourse to the courts, sections 13(1) and 14 make a conviction of culpable homicide or an acquittal on the grounds of insanity conclusive evidence that the accused either is or is not a killer (defined by section 6). Otherwise an acquittal will not prevent interested parties re-litigating that issue in civil proceedings. The recommendations are consistent with the Commission’s work in progress on an evidence code. Not all killings are the subject of criminal proceedings in New Zealand. The killer may not be brought to trial because he or she dies or is unfit to plead, or the killing may occur abroad. Section 15 deals with these situations.

WILLS, INTESTACIES AND NON-PROBATE ASSETS

17 Where homicidal heirs rules apply the killer may not be a beneficiary under the will of a victim or have an entitlement on a victim’s intestacy. Consistently with the existing law, section 7 simply disentitles the killer from taking. Section 7 provides that the property the killer is barred from taking is to be dealt with as if the killer had predeceased the victim. This provision would avoid the results arrived at in Davis v Worthington [1978] WAR 144 and Re Lentjes [1990] 3 NZLR 193, which may be thought odd and unsatisfactory. In these cases “gifts over”³² conditional on the death of the killer failed when the court interpreted the will literally, because the killer, although debarred by the rule from taking, had not in fact died. Other arrangements not covered by section 7 could also result in a killer benefiting from the victim’s death (eg, a nomination of a savings bank account or of a superannuation benefit). These are dealt with in section 8. One of these kinds of arrangements, the joint tenancy, needs to be discussed in more detail.

JOINT TENANCIES

18 The law permits property to be owned by two or more people on the basis that each party loses his or her share on death, with each survivor taking an equal part of a dead party’s share, and the ultimate survivor becoming entitled to all of the property. One example, rarely encountered nowadays outside the rules of a dividing friendly society, is a tontine.³³ A far more common example in New Zealand is that of spouses and de facto partners owning their homes as joint tenants. Spouses may also achieve joint ownership by registering a home under the Joint Family Homes Act 1964. If one spouse murders another, who gets the home? Commonwealth courts have answered this question by treating the property as owned by the parties as tenants in common in equal shares, either by

treating the killing as an election to sever the joint tenancy, or
treating legal title as passing to the killer, but requiring him or her to hold the undivided share previously owned by the victim for the victim’s estate.

There is little practical difference between these two approaches.

19 The difficulty with this solution is that it takes no account of the chance that the victim had of surviving the killer and becoming (if there are only two joint tenants) the sole owner. Some North American literature suggests that to overcome this difficulty the killer should be treated as having only a life interest in the whole property, with the remainder going to the victim’s estate.³⁴ This solution, so the argument runs, does not involve expropriation. The killer’s only certain entitlement was enjoyment during his or her lifetime, and this is preserved. If the killer had predeceased the victim, the killer would have taken nothing and must not be permitted to enlarge his or her rights by killing the victim and so ensuring that the victim predeceases the killer. It adds nothing to the point that the killer (if he or she did not) might have insisted on severance or partition while both the killer and the victim were alive.

20 While there is some attraction in a solution that would allow the killer a life interest or the commuted value thereof, this seems to the Commission unnecessarily complex. It prefers the broad justice of simply treating the killer as having predeceased the victim. The killer, having ensured, by killing the victim, that the winner of the game cannot be determined fairly, cannot then be heard to complain if he or she is deprived of all rights to the prize.³⁵ This of course means that if there are one or more joint tenants other than the killer and victim, these other joint tenants benefit. But that is the nature of a joint tenancy.

CONCLUSION

21 The Commission recommends that Parliament enact the Succession (Homicide) Act set out in this report.

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