Wilkinson Kate: Succession (Homicide) Bill — First Reading 
Wilkinson Kate: Succession (Homicide) Bill — First Reading 
[Volume:634;Page:5572] 
KATE WILKINSON (National) 
: 
 In speaking in support of the first reading of the Succession (Homicide) Bill and its referral to select committee scrutiny—and I would emphasise that we do believe that it should be properly scrutinised by the select committee—it is interesting to delve back into history and into the Law Commission report issued in 1997. It is now 9 years after that report and it recommended back then that our homicidal heirs laws should be codified. Very simply this bill is based on—and it has been said before—the principle that nobody may profit from his or her wrongful conduct that a killer should not take any benefit under a victim’s will and that a killer should not benefit economically as a result of the death of the person he or she killed. It all sounds very very reasonable. But then as is often the case there is some devil in the detail and my colleague Mr Power has already explained some of the concerns he has about this bill. 
If I can just go back a “killer” is defined in clause 4 as “a person who kills a person or child who has not become a person in any manner and in such circumstances that the person is guilty … of the homicide … or would be so guilty if the killing had been done in New Zealand”. To carry that further “homicide” is defined in clause 4 as including “… intentionally or recklessly” killing “by any means that would be an offence under New Zealand law …” but excludes certain killings namely: “(a) a killing caused by negligent act or omission; or (b) infanticide under … the Crimes Act; or (c) a killing … in pursuance of a suicide pact; or (d) an assisted suicide”. Those are the exemptions provided in this bill. 
It is possible however that a husband driving recklessly with his loving wife might have a car crash. His wife is unfortunately killed. He loses under this bill not only his wife but also any entitlement to his bequests and legacies under her will. She may have wanted him to inherit even if he was reckless and even if he did cause her death but does this all equate to a killing by homicide? Under this bill it would appear that it does and under this bill the reckless husband—the reckless widower—would be disinherited. 
Even the Law Commission report itself referred to a similar scenario. It stated: “The unhappy husband who by his negligentdriving 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. 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.” Similarities and parallels can be drawn with Mr Power’s reference to self-defence. 
Going back to the unhappy husband the unhappy husband is indeed reckless. The homicide under this bill however does not have to be intentional and reckless to exclude him from inheriting; the homicide can be intentional or reckless. Yet under this bill such reckless driving causing death would or may exclude the unhappy albeit reckless husband from inheriting from his deceased wife. 
I think that when the bill reaches the select committee stage the committee will need to consider what is really intended by this bill. It may be difficult to prove how wrongful a wrongful killing must be before the bar on profiting shall apply. That is our role as legislators and it is certainly the role of the select committee in scrutinising the bill. 
One has to look at the scenario of the deceased wife killed in the car accident as the result of her reckless husband’s actions. If she would still have wanted her reckless husband to inherit then should not her wishes be respected and be abided by and not overruled by heavy-handed legislation? 
The bill also provides that if no criminal prosecution has taken place if any party alleges that another is guilty of the homicide of a person and the person who is alleged to be guilty of homicide has not been prosecuted then a court in civil proceedings—not criminal proceedings—may decide whether that alleged killer would be guilty of homicide if that person had been prosecuted. What concerns me about this is that the test for this provision is not the usual criminal test of beyond reasonable doubt. It is the civil test of on the balance of probabilities. I believe that the select committee needs to look at the different onus and different tests and at whether the balance of probabilities is appropriate in this unusual homicide criminal situation. 
Another issue I think needs some mention and is of concern is timing; and again my colleague Mr Power alluded to this. How long will it take to establish that the killer is guilty of homicide beyond reasonable doubt in the criminal jurisdiction or on the balance of probabilities in the civil jurisdiction? We already know that at present the longest waiting time for a District Court jury in Auckland is 1179 days. The median time is about 1 year. We have to ask whether the poor residuary beneficiaries of the will are expected to sit and bide time for between 1 and 3 years before a decision can be made over whether a killing by way of homicide has occurred and therefore who is entitled to inherit under the will of the poor victim. 
It is not only that but under estate administration rules partners and spouses have 6 months in which to make an election under the will over whether to take proceedings under the will or under the property relationships legislation. What I would like the select committee to scrutinise and the Minister to consider is how a lengthy delay in the District Court in Auckland for example while waiting to decide whether a homicide has occurred and if so by whom will interface with the existing rules of estate administration. Or is this just another unintended consequence—another example perhaps of justice delayed being justice denied? 
The Law Commission report itself referred to two cases involving homicidal heirs where around 4 years elapsed between the killing and the courts giving judgment. Delay has been given as one of the mischiefs that this bill is intended to remedy. If one has to wait 1179 days for a hearing date in the Auckland District Court one still has the delay. If one has to wait the median time for a trial in the High Court in Christchurch of 203 days then justice is delayed. If one has to wait 262 days in Gisborne then justice is delayed. 
I have to say that although the Succession (Homicide) Bill is well intentioned it is still one part of the jigsaw puzzle. Unless the court waiting-times issue is seriously addressed this bill has every opportunity of merely illustrating more delaying of justice more denial of justice and less access to justice. 
We all know that criminals should not benefit from their crimes and it is about time 9 years after the Law Commission report that killers’ rights and disentitlements in relation to succession should indeed be clarified and codified. But we also need to make sure that the rules are clarified not confused; that there is certainty not confusion; and that access to justice is expedited not delayed. This bill is a start; National supports it going to the Justice and Electoral Committee but it needs serious select committee scrutiny.