New legislation proposed by the Law Reform Commission would prevent killers from benefiting from the life insurance policies, trusts or pensions of their victims.
The Report to Prevent Persons Benefiting from Committing Homicide, would also prevent offenders found guilty of murder, attempted murder or manslaughter from benefiting from property held jointly with their victims.
At present, under the Succession Act 1965, a person may not inherit any part of the estate of a person whom he or she has murdered, attempted to murder or killed by manslaughter.
But property held in joint tenancy, such as a family home, does not form part of a victim’s estate and so is not included under the legislation.
As part of a joint tenancy, when one of the joint owners dies, the entire interest in the property automatically passes to the surviving joint owner who becomes full owner. This right of survivorship applies even where the co-owner has killed his or her spouse.
Life insurance
The killer may also benefit, for example, from a life insurance policy, taken out as part of a mortgage on the family home, if it is paid out on the death of the co-owner.
Speaking to The Irish Times, Judge Marie Baker said the proposed legislation would allow the joint tenancy to be separated 50/50 and then the court could look at the 50 per cent belonging to the offender and examine if there were reasons why some of it should be taken away.
For example, if the property was mortgaged and the mortgage was paid off from an insurance policy on the victim’s life, then the offender should not receive the benefit of that. An offender should also not be allowed to benefit from a victim’s pension.
The report was produced following public consultation, as part of the Law Reform Commission’s fourth programme of law reform.
It says public policy is clear; a person who commits murder or manslaughter should not benefit or profit from it and should not be allowed to bring civil proceedings arising from it.
However, the application of that principle has proved problematic and comprehensive legislative reform is required to implement it.
Clarification preferable
It said if a case related to pensions came before the courts, it is likely public policy on not benefiting from the proceeds of a crime would apply, but it would be preferable to clarify the law.
It recommends in the case of joint tenancy, the legal interests of victim and offender should be severed and it should be presumed the victim holds at least half of the interest in the property.
A court should then decide the amount to be held by the offender, taking into consideration the circumstances and that the right of survivorship was accelerated by the homicide.
The changes should apply only to murder, attempted murder and manslaughter, the report said, but not to other offences leading to death, such as dangerous driving.
In the case of manslaughter, the court should be allowed to disapply the rule to prevent the offender from benefiting, if it is in the interests of justice. This could apply, for example, if the crime involved provocation, such as where there is a long history of domestic violence.
The report includes a draft Civil Liability (Amendment) (Prevention of Benefit from Homicide) Bill. It will be launched on Friday evening by Ms Justice Laffoy.
Prior cases – Cawley v Lillis
Eamonn Lillis was jailed for killing his wife Celine Cawley in 2008 at their family home in Howth Co Dublin.
He was convicted of manslaughter in 2010 and sentenced to six years and 11 months in prison. With remission, he was released in April this year.
While he could not inherit from the property owned solely by his wife, under the right of survivorship, which applies to joint tenancies, including a family home, he was entitled to 100 per cent of their shared property.
In 2011, Ms Cawley’s family took legal action against him to prevent him from taking Ms Cawley’s share of the property, on the basis that he should not benefit from his crime.
During the case, Lillis conceded the right of survivorship did not apply to the assets held under a joint tenancy, acknowledging that public policy would not permit him to obtain a benefit resulting from the crime he committed.
Ms Justice Mary Laffoy then ruled she could modify the right of survivorship rule. She found that the legal title to the jointly owned property vested in Lillis, but that he held Ms Cawley’s share on trust for her estate.
He was entitled to half of the jointly owned property, with the remainder to go to their daughter.
At the end of her judgment in the Cawley case, Ms Justice Laffoy said there should be legislation in place which lays down the destination of co-owned property in the event of the unlawful killing of one of the co-owners by another co-owner.
O’Brien v McCann
In 1998, the mother of murder victim Esther McCann took legal action against her daughter’s killer, husband Frank McCann, to recover her daughter’s share of the family home. The property in Rathfarnham, Dublin, was worth IR£180,000 (€228,552) and the outstanding mortgage on the home, IR£50,000, had been paid when Ms McCann died under the couple’s mortgage protection policy.
The victim’s mother, Bridget O’Brien, then aged 83, took civil action at the Circuit Court. She wanted damages for mental stress and funeral expenses, and for the court to apply public policy, that a killer should not benefit from his crime, to the joint tenancy in the family home.
Crucially, McCann conceded that, arising from the principle that a person may not benefit from a crime, the ordinary rule of survivorship, which would have meant he would get all of the family home, could not apply.
Judge Elizabeth Dunne found the murder severed the joint tenancy and as a result the offender could not inherit or succeed to the half interest his wife held in the property. It should go to the mother.
She also said McCann was not entitled to the benefit of the payment of the mortgage by the insurance company. She ordered he should pay his half to Mrs O’Brien, along with her legal costs and IR£9,300 for mental stress and funeral expenses. Her ruling, at Circuit Court level, was not binding on higher courts.
