Finlayson Christopher: Succession (Homicide) Bill — Third Reading 
Finlayson Christopher: Succession (Homicide) Bill — Third Reading 
[Volume:642;Page:11983] 
CHRISTOPHER FINLAYSON (National) 
: 
 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.