Wednesday 26th November 2014: The Law Reform Commission has today published an Issues Paper on Unworthiness to Succeed Under Section 120 of the Succession Act 1965. This forms part of the Commission's Fourth Programme of Law Reform, which was approved by the Government in October 2013. The Issues Paper is available from 9.30am this morning on the Commission’s website, www.lawreform.ie.
Under the Succession Act 1965, a person may not ordinarily inherit any part of the estate of a person whom he or she has murdered, attempted to murder or killed in circumstances amounting to manslaughter. Further, if a person has at any time in the past been convicted of an offence committed against the deceased person (or a spouse or child of the deceased), and if the offence in question carried a maximum sentence of two years' imprisonment or more, that person may be precluded from taking a share, to which he or she would otherwise be legally entitled, in the deceased person's estate.
Certain difficulties connected with this provision have recently come to light, especially in the context of spousal homicides where the killer and the deceased happened to be joint owners of a piece of property such as the family home. For this reason, the Law Reform Commission was asked to review the relevant section of the Succession Act. The more specific issues involved are set out in an Issues Paper being published by the Commission today and are summarised below.
How the current law was applied to a joint tenancy in Cawley v Lillis (2011)
The Issues Paper asks whether the current law should be reformed, including where it applies to a joint tenant who kills his or her spouse who was also a joint tenant at the time of death, which arose in the High Court in 2011 in Cawley v Lillis. A joint tenancy is a type of co-ownership of property, often arranged between spouses. Where one of the spouses dies, the entire interest in the property automatically passes to the surviving joint owner who becomes full owner. The property held in a joint tenancy does not become part of the deceased joint owner's estate because ownership automatically vests in the surviving co-owner.
This legal consequence, called the right of survivorship, applies even where, as in Cawley v Lillis, the surviving co-owner has killed his or her spouse; and the High Court (Laffoy J) decided that, under the current law, the interest of the deceased should be held by the surviving spouse - the killer - in trust for the deceased's daughter. The Court considered that the law should be reviewed, and the Issues Paper examines that question as well as a number of matters related to the general scope of the current law and the costs associated with such cases.
Questions raised in the Issues Paper
The Commission is particularly interested in receiving the views of interested parties on a range of questions that arise not only where a joint tenancy is involved but also in connection with other related matters. Among the questions asked in the Issues Paper are these:
1. In a joint tenancy, should the legal title pass to the unlawful killer to hold the victim’s interest on trust for the benefit of the victim's estate, as decided in Cawley v Lillis, or should the joint tenancy be severed so that it is held by the unlawful killer and the victim’s estate as tenants in common?
2. Should the current law be extended to other forms of homicide; and/or should it be possible for a court to modify the forfeiture rule? The Issues Paper notes that other jurisdictions have a similar forfeiture rule but have included a wider definition of homicide, such as dangerous driving causing death. A number of those jurisdictions also allow a court a discretion to modify the forfeiture rule, usually in cases other than murder, such as where the person who has killed had previously suffered violence at the hands of the deceased person.
3. Should the current law on costs in forfeiture cases be amended? The Issues Paper asks whether legal costs of forfeiture cases should be paid by the person who has killed; and whether there are any other ways that current procedures can be reformed to ease the burden on those acting on behalf of the victim of an unlawful killing.
4. Should a criminal conviction be admissible in a subsequent civil case on unworthiness to succeed? In Nevin v Nevin (2013), the High Court (Kearns P) allowed a criminal conviction for murder to be admitted in evidence but noted that the law in this area would benefit from being clarified.
For further information/interview with a Commission representative contact:
Winifred McCourt, McCourt CFL T: 087-2446004
Background Notes for Editors
The Law Reform Commission is an independent statutory body whose main role is to keep the law under review and to make proposals for reform. To date, the Commission has published over 190 documents (Working Papers, Consultation Papers, Issues Papers and Reports) containing reform proposals, available at www.lawreform.ie. The Commission has asked that submissions and comments on the Issues Paper, which can be made online, by email or by post, should be completed if possible by Monday 26th January 2015.