Hon RICK BARKER (Minister of Internal Affairs) Link to this
I move, That the Succession (Homicide) Bill be now read a third time. The bill flows from the Law Commission’s review of the well-established principle that a killer cannot inherit from his or her victim’s estate. The rule recognises that it would be repugnant to allow a killer to profit from his or her wrongdoing, and addresses society’s condemnation of the prospect that a killer might benefit in that way. The Law Commission’s report was published as part of its broader examination of succession law, which also gave rise to the recently passed Wills Bill. Following the Law Commission’s analysis of the general rule that a killer cannot benefit from his or her wrongdoing by inheriting from his or her victim, the commission concluded that the rule was well accepted, but that it was unclear how it should be applied in some cases. The commission recommended enacting legislation to clarify the general rule. The commission is an important law reform source, and I thank it for its contribution.
The Justice and Electoral Committee undertook a thorough and efficient analysis of the Succession (Homicide) Bill. The committee’s amendments to the bill take their lead from the commission’s original proposals, and improve the bill’s operation while still being consistent with its underlying policies. I am grateful to the Justice and Electoral Committee and to submitters for their thoughtful consideration of, and comment on, the bill. The contributions, which built on the work of the commission, have been of real assistance in creating an effective statutory framework.
The bill has a number of important interrelationships with other statutes that affect the distribution of estates, such as the Law Reform (Testamentary Promises) Act 1949 and the Property (Relationships) Act 1976. The committee made some important technical changes to the bill that will improve those interrelationships. The key principle of the bill is that a killer should not be allowed to benefit from his or her wrongdoing, but neither should he or she be deprived of independent and pre-existing interests. The committee’s changes are consistent with those principles. The committee also improved the wording of certain provisions and the processes for establishing whether an alleged killer comes within the scope of this legislation. The bill helpfully clarifies how the general rule that prohibits a killer from benefiting from his or her victim’s death applies, and that is commendable. The last thing a family needs while mourning the loss of their loved one is a legal debate over the distribution of the victim’s estate. The bill will reduce not only the number of disputes but also the scope of any disputes that do still arise.
I commend this bill to the House.
CHRISTOPHER FINLAYSON (National) Link to this
The National Party supports the third reading of this Succession (Homicide) Bill. Indeed, its members worked diligently on the Justice and Electoral Committee to ensure that some changes were made to the bill to improve it, and I will talk about those in the course of this third reading speech.
But before I do so I will make a couple of preliminary comments about the good work undertaken by the Law Commission in the 1990s in relation to what was called the succession law project. The purpose of the project was to review and reform certain legislation. The first was the Wills Act of 1837, and, as the House knows, we recently passed legislation to update that particular law. The second was the Law Reform (Testamentary Promises) Act of 1949, and nothing has happened to reform that important piece of legislation. Thirdly, we had work undertaken by the Law Commission on the Family Protection Act 1955 and the Matrimonial Property Act 1963, and as yet nothing has happened there. Finally, work has been undertaken on the Administration Act 1969, and nothing has happened to give legislative effect to the work of the Law Commission there.
But one piece of work where the Law Commission did report in 1997 to the then Minister of Justice, Doug Graham, was succession law and the difficult issue of homicidal heirs. It is a well-known principle—indeed, it is an ancient legal maxim—that no person may profit from his or her wrongful conduct. I would observe, however, that I showed that maxim to Mr Groser shortly before I began this speech and he commented that it is a useful legal principle that has no application to politics, as anyone who is familiar with this Labour Government would recognise.
Putting that to one side, it has been said for many years that no person may profit from his or her wrongful conduct. As an English court said in 1914, and I apologise for the sexist language: “A man shall not slay his benefactor and thereby take his bounty.” So the principle has been well understood for many years, and a question that immediately arises is that if the principle is so well understood, why is legislation needed? Why do we have to pass into law the Succession (Homicide) Bill?
I think there are four reasons, which were usefully summarised in the Law Commission’s report. They can be summarised in this way. The first is that although the general principle, which I have outlined, is well settled, how it is to be applied in the particular circumstances is uncertain, and I will demonstrate that when I come to look at some of the provisions of the statute. So what we have done here is try to clarify certain matters that, when looked at from a general principle, have been unclear. The second point, and I think this is well made by the commission, is that without legislation the New Zealand courts, when considering each problem as it arose, would have to eventually decide all the unanswered questions. But as we well know, leaving it to judges has its price in terms of uncertainty, and there comes a time when it is the responsibility of the legislature to clarify certain principles by statute. The third point, and this is one that I found particularly interesting when reading the Law Commission’s report, is that far more homicidal heirs’ cases arise than I had thought. The Law Commission’s report in 1997 outlines some of those cases and I am not going to dwell on them here. The final point is that 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 governing distribution on intestacy—and I am referring of course to the Administration Act 1969.
So for those reasons legislation was required. I am very pleased that this bill was introduced and referred to the Justice and Electoral Committee, and that a number of changes were made as a result of the submissions. There were not many submissions, but those that were received were of a very high quality, and a number of important changes to the legislation were made. Those changes improve the legislation considerably. Let me summarise a couple of them. The first deals with an amendment to what is clause 8, and the issue of joint tenancies. The point that I would emphasise is that where one joint tenant kills another joint tenant in circumstances that amount to homicide, then that will be treated as converting the joint tenancy into a tenancy in common. That will ensure that a spouse or partner who kills cannot reclaim the joint tenancy interest under the Property (Relationships) Act 1976.
The second major change, and it was one I still reflect on because I hope we got it right, concerns restrictions of claims. The bill provides that a killer who has a valid claim against the estate of a victim is entitled to make an application in respect of that claim under the Law Reform (Testamentary Promises) Act 1949. That will not apply, and will not permit an application to be made, where a testamentary promise is expressly provided for in the victim’s will, but it does permit such claims to be made to ensure that a killer will not necessarily be deprived of the benefits of a prior testamentary promise made by the victim for services provided by the killer, regardless of what is contained in the will. As the commentary on the bill states, that change did cause some consternation. As I say, I think we have it right but I am still not entirely convinced, so we will have to see whether there are cases that deal with promises made—not contained in a will but outside a will—that fall within the Law Reform (Testamentary Promises) Act 1949.
The third major change that I want to mention—there are some other, minor ones, which I will not dwell on—deals with clause 15. It establishes the process for proving whether a person is guilty of homicide for the purposes of the bill. We in the select committee recommended it be extended to apply to cases where a person who is alleged to be guilty of homicide has been prosecuted in New Zealand in respect of that homicide but has been acquitted, other than on grounds of insanity, or where the prosecution has been stayed or withdrawn. When one reads clause 15, one sees that the issue has to be proved on the balance of probabilities.
The final point I wish to refer to concerns simultaneous deaths. We had a look at the relationship between this bill and the Simultaneous Deaths Act 1958 and we were satisfied that if both the killer and the victim die simultaneously, then the killer would be treated as predeceasing the victim.
With those changes, and a couple of other, minor ones, I believe that this is good law. I believe that the legislation is necessary, and I endorse what the Law Commission report stated in 1997. I join with the Minister in thanking both the Law Commission and the Ministry of Justice officials—Sarah Lynne is one who immediately springs to mind—who have done excellent work on this bill, working with the select committee. Although I hope the legislation will not be invoked very frequently, it certainly closes a gap that exists in the law, and, as I said, for very good constitutional reasons these things should not be left to judges. So National supports the third reading of this important statute.
RUSSELL FAIRBROTHER (Labour) Link to this
There is a gap in the law only if one regards the common law as an inferior form of law to statute law. The Succession (Homicide) Bill, of course, still requires some common law definition, because it defines homicide by referring to “intentionally or recklessly” killing someone, but it does not clarify the circumstances of recklessness. However, I imagine it would follow very much the definition of homicide in the Crimes Act. That, of course, would then include a person who was acquitted of murder but convicted of manslaughter after having run a defence of provocation. Presumably, it would also cover a reckless driver—someone who had in contemplation—
John HayesRUSSELL FAIRBROTHER Link to this
—the member can make jokes about this but it is not really a very funny subject, nor is the member’s joke—that his or her driving may lead to death, which is perhaps a lower standard than that under the Crimes Act. So although this bill does take into our statute law the common law, there still does remain a degree of common law imported into the definition of homicide.
Homicide is simply a death caused by an unlawful act. The threshold for manslaughter is much lower than that in the Crimes Act, so not all deaths caused by another person, particularly by a spouse, will result in a loss of right to succession. It is met only when people hold the intent to kill and that is proven by a court, or where they act in a way where, if they turn their minds to it, they are so reckless that death is likely to follow, and, sadly, death does follow.
So I agree with my learned friend Chris Finlayson that this bill is not before time. It delights in being an elegantly simple bill, but it still, of course, has that lacuna in the definition where it comes to the term “homicide”. However, that is probably a good thing when we talk about our common law tradition, because it retains the ability of the courts to look at the circumstances of any particular killing that falls short of a conviction for murder. The third reading of this bill does represent an important step in the development in our law, as we move to codify what has previously been a longstanding common law tradition understood by many in general terms, but perhaps not in detail. I dare say that before the passing of this legislation many criminal lawyers who defend homicide cases day in and day out will have had difficulty in determining when a client was entitled to succeed under the estate of the person he or she had killed. To a large extent this bill now tidies up that lacuna in the law, and I look forward to the development of the common law on the definition of homicide in giving a clarity to the term “recklessness”. Because there is a wide variety of situations in human affairs, it is entirely appropriate that there be that area for the development of the common law as this legislation bill is carried forward on to our statute book.
Including this area of law in a statute is long overdue. It reflects no radical departure from the common law, but it does make the position crystal clear on our book for today. I support the bill.