Chauvel Charles: Succession (Homicide) Bill — In Committee 
Chauvel Charles: Succession (Homicide) Bill — In Committee 
[Volume:639;Page:9789] 
CHARLES CHAUVEL (Labour) 
: 
 I thank Mr Finlayson; I will try to address the correct part this time. 
Hon Rick Barker 
: The Opposition doesn’t. 
CHARLES CHAUVEL 
: That is right—that is right. The Justice and Electoral Committee recommended changes to a number of clauses in the Succession (Homicide) Bill and just looking at the report of the committee and the bill as reported back I can tell members that they were clauses 7 8 10 11—we recommended the insertion of a new clause 11A—12 and 15. 
I want to speak to just three of those amendments substantively starting first with the proposed changes to clause 8 which deals with joint tenancies. Obviously there are a number of ways in which property can be owned legally and joint tenancy is one of those ways. Clause 8 as originally drafted would have disentitled a killer from having any interest in a property that he or she co-owned as a joint tenant with his or her victim. But a killer who was married to in a de facto relationship with or in a civil union with the victim might still have been able to recover his or her interest under the Property (Relationships) Act. 
The select committee has recommended and I would commend to the Committee the adoption of a new subclause 8(3) which provides that the killing by one joint tenant of another joint tenant has the effect of converting the joint tenancy to a tenancy in common. By the operation of law each co-owner or the estate in the case of a victim takes a share. 
This provision is consistent with the overarching policy of the bill we have tried to remain true to which is that a killer should not benefit from any wrongdoing. This illustrates I think the repugnancy question that Mr Auchinvole referred to earlier. We did feel that we were dealing with rather unpalatable alternatives but nonetheless we had to try to weigh them up fairly. Although somebody should not be able to benefit from wrongdoing neither should they be deprived of pre-existing rights in any sort of penal fashion. That is the balance we have tried to achieve by the insertion of new subclause 8(3). 
In dealing with testamentary promises we have provided for some changes to clause 10. To understand the way that this clause works it is necessary also to consider clause 7. Basically a testamentary promise is a promise either expressed or necessarily implied that a person will be rewarded for services performed in one’s will. Rather than paying somebody for services during one’s lifetime one would say: “Look I’m going to look after you in the will; you’ll be right.” As originally drafted clause 10 would have allowed a killer to make a claim under the testamentary promises legislation only where the victim failed to provide for the killer in his or her will. If the victim had fulfilled the promise in the will the disposition would have actually been revoked by clause 7. 
The select committee has recommended the insertion of a new subclause clause 10(2A) ensuring that a killer can make a claim under the testamentary promises legislation irrespective of whether the victim provided for the killer in the will. In this case the claim for payment will be treated as a pre-existing interest because it is effectively a reward for services already performed. Again this is consistent with that odd sort of balancing act we have had to perform in the legislation so that the killer does not benefit from wrongdoing but neither is he or she treated overly harshly or deprived of existing rights. 
The last substantive changes I want to address are those to the provisions of clause 15. As originally drafted the bill did not specify the procedure for an interested party to make a claim in civil proceedings that an alleged killer had committed homicide for the purposes of the bill in cases where the alleged killer had been prosecuted but acquitted in respect of that homicide. The bill was amended to clarify that in such cases a court can decide on the balance of probabilities whether the alleged killer is nonetheless guilty of homicide for the purposes of the bill. I think it is fair to say that the amendment recommended by the committee will avoid any confusion over the appropriate procedure to be adopted in those cases. Those are the three amendments that I wanted to speak to and to commend to the Committee.