Wilkinson Kate: Succession (Homicide) Bill — In Committee 
Wilkinson Kate: Succession (Homicide) Bill — In Committee 
[Volume:639;Page:9790] 
KATE WILKINSON (National) 
: 
 In speaking to Part 2 I would like to reiterate what Mr Chauvel has said in relation to joint tenants and tenants in common and that amendment suggested by the Justice and Electoral Committee certainly makes sense. There are two forms of ownership of property whether it is real estate or personal estate. One is joint tenancy and one is tenancy in common. The difference basically is that joint tenants are covered by what is known as survivorship so that if one of the joint tenants dies the other one automatically inherits. In other words the inheritance does not become part of his or her estate. If it did not become part of his or her estate it would not have been covered by this Succession (Homicide) Bill. So in that sense I think that the committee has suggested a fairly common-sense amendment. 
I would like at this stage to spend a little bit of time in relation to clause 15 which basically relates to the evidence where no criminal prosecution has been completed or where there has been an unsuccessful prosecution. It states: “(1) This section applies if—(a) in any proceedings … any party alleges that another person is guilty of the homicide of a person or a child that has not become a person; and (b) the person who is alleged to be guilty of the homicide … has—(i) not been prosecuted in New Zealand in respect of that homicide …”. 
I suppose in this sense my concern in a way relates to timing and practicalities. I go back to the poor reckless husband who kills his second wife in a car accident. The child of the first marriage claims that he was reckless. To be prove recklessness in a criminal case the prosecution has to do so “beyond reasonable doubt”. Yet the child in this case who is the child of the first marriage—and there are always different dynamics between first and second marriages of course—has only to prove that the husband was reckless on the balance of probabilities. If that child can prove that on the balance of probabilities then the chances are that he or she can inherit under the estate. But I do have some concerns in relation to the differences in the burden of proof between proving on the balance of probabilities and proving beyond reasonable doubt. 
Having said that I am also concerned about the question of timing and I am certainly pleased that the Minister for Courts the Hon Rick Barker is in the Chamber because he might like to take some cognisance of this. We have a situation with our courts of waiting times and delays where there can be median delays of 200 days or 300 days before a hearing even gets before a judge. 
 We could look at the scenario where a killer inherits from his victim’s estate and it is only some years after the victim’s death that the death is able to be attributed to the killer’s actions. Perhaps the Minister might like to take a call on this matter. This issue is almost the opposite of what Mr Finlayson referred to when he talked about the definition of “immediate”. Again the Minister may like to address what he believes the definition of “immediate” is as well. 
What if at first glance a death appeared to be accidental but it was subsequently found to be a murder and because of the time lapse between the act of killing and the charging of the killer—or indeed the conviction of that killer—the estate had already been distributed to that killer? I do wonder whether this bill is intended to apply retrospectively. Will the estate inherited by the killer then be forfeited years later and redistributed if there is anything left? Or how long do the trustees and executors have to wait before they can administer or execute the terms of the will? 
I think that in speaking to the first reading of the bill I drew the attention of the House to a couple of instances referred to in the Law Commission report whereby there was a delay of some 4 years between a killing and the courts giving judgment. During those 4 years the estate must remain virtually dormant. The difficulty is that the executors have a duty to properly and expeditiously administer the estate but they cannot do so because they are still waiting for a court hearing to decide who will inherit and whether in fact the Succession (Homicide) Bill will be applicable. So in a sense the estate is in limbo. 
To take a more topical and recent occurrence members should look at the situation of David Bain. His family was murdered 13 years ago. If he is not convicted of killing his family then he should be entitled to inherit the family house—albeit that I understand the family house has burnt down. But having said that there still may be some assets left in that estate. 
I do think a practical difficulty could be encountered by the courts in deciding what is reasonable and in deciding how on earth the executors can perform their duties to execute and administer an estate where there may be a delay between the time of a person’s death and the time when it is known whether the death was caused by murder or negligent killing. Therefore there is also a practical difficulty for the court when it decides whether the situation comes within the ambit of this legislation. 
With that I would ask the Minister to take a call on this issue. It is in relation to Part 2—I think I have the part right—and certainly from a practical point of view I think this issue could very well be debated.