Chauvel Charles: Succession (Homicide) Bill — Second Reading 
Chauvel Charles: Succession (Homicide) Bill — Second Reading 
[Volume:639;Page:8992] 
CHARLES CHAUVEL (Labour) 
: 
 This Succession (Homicide) Bill is another bill that had its genesis in a Law Commission report and is now being enacted into the laws of New Zealand. The report  
Succession Law: Homicidal Heirs 
 was report No. 38 of the Law Commission published in July 1997. The foreword to the report records that the Minister in charge of the Public Trust Office had asked the commission as part of its project to review the law of succession in order to expedite its work on the effect of homicide on rights of succession. The Minister’s interest in the subject was aroused in part by the problems demonstrated by the case of  
Hunter’s estate: Farrell v Public Trustee 
. 
The commission in its foreword goes on to note that the need for homicidal heir legislation was as a previous speaker indicated identified more than 30 years ago by the former Property Law and Equity Reform Committee in its 1976 report  
The Effect of Culpable Homicide on Rights of Succession 
. It has been noted that this report is over 30 years old. I agree with the previous speaker that it is high time that legislation was brought down to codify the common law in this area and I am proud it is a Labour-led Government that is finally doing that. 
The commission sets out in its report the rules that should codify the common law relating to the succession of killers. It can be seen that the legislation before the House draws heavily on the draft bill set out in the Law Commission’s report. At the time the commission was working on a project concerning the statutes that govern succession generally. Embraced within the ambit of that project were the Wills Act 1837 of the Imperial Parliament the Law Reform (Testamentary Promises) Act 1949 the Family Protection Act 1955 the Matrimonial Property Act 1963 and the Administration Act 1969. The commission aimed to have the new succession legislation drafted in plain language providing for the matters dealt with in all those statutes. It aimed to have it in fewer statutes trying to simplify the law and to enable better effect to be given to the intentions of lawmakers and taking into account the diversity of New Zealand families. 
Later today it is likely that we will consider a new Wills Bill which had formed part of this commission project at the time. That bill will govern will-making for the first time in a statute of this Parliament. It is another fruit of the succession project that the commission was pursuing in the late 1990s. 
Before proceeding to discuss the provisions of the Succession (Homicide) Bill it is appropriate in my view to pay tribute to the members of the Law Commission and others who were responsible for the work leading to the 1997 report. Former commissioner Professor Richard Sutton Mr Brian Blacktop who was Deputy Public Trustee at the time and Nicola Peart who was a senior law lecturer at the time were all acknowledged in the commission’s report which was issued during the presidency of Justice Baragwanath. Nicola Peart’s involvement with the legislation has continued. She presented the submissions of the New Zealand Law Society to the Justice and Electoral Committee on this bill. 
There are six provisions of note in the legislation as introduced. First is the definitions of “killer” and “victim” contained in clause 4 of Part 1. Having dealt with definitions the bill goes on to provide that a killer as defined may take no interest in any property under the will or intestacy of the killer’s victim. 
Clause 7 provides that the interest in the relevant property will be distributed as if the killer had predeceased the killer’s victim unless there is an expressed testamentary provision to the contrary. Clause 8 goes on to prevent a killer from taking any interest in property transmitted outside the estate disposed of by the will of the victim. Non-probate assets in this category could include real property jointly owned by the killer and the victim. Again the principle followed by the legislation is that the killer is to be treated as if he or she predeceased the killer’s victim when considering how the interests in the relevant real property should pass. 
Clause 9 goes on to provide that the killer is not entitled to apply under the Family Protection Act 1955 to be provided for out of the estate of the killer’s victim. Clause 10 deals with three types of claim: claims made under the Matrimonial Property Act or the Property (Relationships) Act as a previous speaker indicated relating to property disputes between spousal partners; valid claims made for restitution of economic benefits conferred on the killer’s victim in anticipation of a reward; and claims made under the Law Reform (Testamentary) Promises Act 1949. In the case of any of these types of claims the bill provides that the killer can make a claim but the death of the victim gives the killer no more certain immediate or valuable benefit than that to which the killer would otherwise have been entitled but for the homicide. 
The final major provision of the original bill is in clauses 13 through to 15 and relates to evidence of homicide. The rules are relatively simple. The conviction in New Zealand of a person for homicide is conclusive evidence of that homicide and of that person’s guilt unless there has been a successful appeal resulting in an acquittal. Acquittal in New Zealand by reason of insanity in the case of homicide is conclusive evidence that the killer is not guilty of homicide for the purposes of the bill. Where a person is alleged to have committed homicide but no prosecution has occurred in New Zealand in respect of the homicide the court may decide whether the person did commit homicide but will do so on the civil standard. In such cases a person who alleges that he or she is not guilty by reason of insanity must prove that state of affairs again on the civil standard of the balance of probability. A conviction for homicide outside New Zealand is admissible evidence as to the person’s guilt of homicide and is to be given such weight as the court determines. 
Having had the privilege of sitting on the Justice and Electoral Committee I can say that the quality of the submissions we heard was extremely high. Generally speaking the submissions were supportive of the need to codify the common law in this area. We recommended three major changes to the original legislation. I am pleased to hear that the Minister and the Government will support these. First in respect of property owned in joint tenancy by the victim the victim’s killer—and any other person if any—that property should be distributed on the death of the victim as if it were the property of each of the owners as tenants in common in equal shares. Obviously this will allow for only the share of the property owned by the killer to continue in the killer’s ownership but it will not allow the killer to profit to any greater extent. 
In respect of claims as to matrimonial property testamentary promises and restitution we were at pains to make clear that any payment for services promised to the killer by the victim prior to death would not be regarded as an additional benefit from the victim’s death. We felt that this change was consistent with the general principle of the bill which was to deprive unlawful killers of any profit from their wrongdoing but otherwise not to adversely penalise them or affect them any further. 
 Finally also hopefully acting consistently with that principle we recommended in our report—and the Government has accepted—that when applying section 88(2) of the Property (Relationships) Act 1976 the court should be at great pains to favour the granting of leave in those cases if refusing to do so would allow the killer to retain a more certain or more valuable interest in the property than that he or she would have had but for the unlawful killing. Again we have tried to reinforce the principle of not profiting from wrongful action. 
I am glad that this Parliament has progressed legislation on this issue and I am pleased to have risen and taken a call in support of the second reading of the bill. Thank you.