Succession (Homicide) Bill passed by Parliament

Associate Justice Minister, Clayton Cosgrove has welcomed the passage of the Succession (Homicide) Bill by Parliament last night.

Mr Cosgrove says the new Succession (Homicide) Act 2007 clarifies the general rule that prohibits killers benefiting from the death of their victims.

"The Act recognises that it would be repugnant to let a killer benefit from his or her wrong-doing. That was a well-established judge-made rule. However, while the rule itself was well-accepted, it was sometimes unclear how it should be applied in individual cases. Any disputes or uncertainties had to be resolved on a case-by-case basis. That could be expensive and time-consuming and the last thing a grieving family needed was a legal wrangle over how to deal with their loved one’s estate.”

The new Act improves on the current situation by: providing a clear definition of the types of homicide to which it will apply; setting out how a victim’s estate is to be distributed and how a killer’s interests in property will be affected; and clarifying the procedure for establishing whether an alleged homicide does in fact come within the scope of the Act

The new Act ensures that killers will not benefit from the death of their victims. It is based on a report and draft bill produced by the Law Commission in 1997 following a review of this area of the law.

Mr Cosgrove thanked the Law Commission for its contribution to the development of the Act.

“The new Act will not only reduce the number of disputes, it will also reduce the scope of any disputes that do still arise. It will clarify the law and make it easier for New Zealanders to understand and apply,” he said.

Background Information: Succession (Homicide) Act

The Law Commission published Succession Law: Homicidal Heirs (Report 38) in 1997. Why is the government implementing the recommended reforms now? Over the last year, the government has been committed to giving effect to a number of Law Commission reports that propose sensible, useful law reform that aims to make the law clearer and more accessible. The Arbitration Amendment Act, which was also passed last night, and the recently enacted Wills Act and Property Law Act are all based on Law Commission reports.

Why is legislation necessary? While the general principle that a killer cannot inherit from their victim was well-settled, it was sometimes unclear how it should be applied in individual cases. Any disputes or uncertainties had to be resolved by the courts on a case-by-case basis. That could be expensive and time-consuming. The purpose of the Succession (Homicide) Act is to codify and clarify the general rule that a killer cannot inherit from the victim’s estate so as to reduce the need to go to court, and reduce the scope of any disputes that do arise.

The Law Commission did not recommend prohibiting a person who unlawfully and recklessly kills another from inheriting from that person’s estate, so why does the Act do that? The Act prevents a person who either intentionally or recklessly killed another from inheriting. That was done because recklessness involves an element of intention – it consists of intentionally doing an act that runs an unreasonable risk of causing death.

If a killer can’t inherit, what happens to the benefit they would otherwise have received from the victim’s estate? Generally speaking, the property will be distributed according to the victim’s will or the intestacy rules as if the killer had died before the victim. The Act does not seek to deprive a killer of any pre-existing property interests that they might have had, provided that those interests are not made any more valuable as a result of the unlawful killing.

How does the Act deal with mercy killings? The general rule is that a person who unlawfully kills another, whether intentionally or recklessly, cannot inherit from the deceased’s estate, even if the motive for the killing was benevolent. These cases, often referred to as “mercy killings”, are not specifically excluded from the prohibition on profiting. There are two exceptions, however: First, a person who survives a suicide pact (an agreement between two or more persons to end their lives, whether or not each is to take their own life) will not be disinherited. Secondly, there is limited exception for cases of “assisted suicide”. Assisted suicide is narrowly defined and essentially concerns cases where the deceased asked the alleged killer for help to commit suicide.

Have any changes been made to the Bill since it was originally introduced? The Justice and Electoral Committee made the following sensible changes: Changes have been made to the treatment of joint tenants. Joint tenancy is a form of co-ownership of property, whereby when a joint tenant dies, their share in the property automatically passes to the surviving joint tenant or joint tenants. The original Bill treated a person who killed a fellow joint tenant as having died before the victim and therefore losing their entire interest in the jointly owned property. However, if the joint tenants were in a relationship the killer could have reclaimed an interest in the property under the Property (Relationships) Act. The same would not have applied to other joint tenants – for example, if the killer and victim were siblings. That could have produced inconsistent results, so the Act was amended to provide that the killing of one joint tenant by another joint tenant will instead be treated as converting the joint tenancy into a tenancy in common. This means that the killer, victim and any other joint tenants will each retain an individual share in the property. The killer won’t lose their interest but also won’t receive any of their victim’s share.

The Act was amended to clarify the procedure in cases where an alleged killer has faced criminal proceedings in New Zealand but been acquitted on grounds other than insanity. The Act now expressly provides that in such cases a court can decide on the balance of probabilities whether the alleged killer is nevertheless guilty of homicide for the purposes of the Act (or whether they are not guilty by reason of insanity). This rule recognises that a different standard of proof is required for civil proceedings (“on the balance of probabilities”) than for criminal proceedings (“beyond reasonable doubt”). The Bill as introduced was silent on this rule, but an interested person could have brought such proceedings anyway. The change ensures there will be no confusion as to procedure. So, for example, a jury might find an alleged killer not guilty following criminal proceedings because they were not satisfied that guilt was proved beyond reasonable doubt. However, an interested party might still be able to prove in civil proceedings under this Act that, on the balance of probabilities, the alleged killer did unlawfully killed the victim and should therefore be disinherited.

Other changes were made to ensure the Act works effectively with other succession legislation. All changes made during the passage of the Act are consistent with the policy of: clarifying the law; and/or ensuring that killers don’t benefit from their wrong-doing, but are not deprived of pre-existing rights.

ENDS

© Scoop Media