The Lawyers Weekly - April 6, 2012

THE LAWYERS WEEKLY
April 6, 2012 | 9

TILL DEATH

DO US PART Difficult questions arise when joint tenants kill

CAN A PERSON kill his way into an inheritance? The simple answer is “no” but a recent case dealing with the manslaughter of one joint tenant by the other reveals the complexity these fact patterns can raise.

There are two guiding principles: No person should benefit from a criminal act; and the rules of property law should not require that a person forfeit pre-existing property rights as punishment for committing a crime. Penalizing criminal conduct is the function of criminal law, not property law.

In many instances, the benefit principle and the forfeiture principle may be applied without difficulty or controversy.

The easy examples include circumstances in which an estate beneficiary murders the testator, or a life insurance beneficiary murders the person whose life is insured. The benefit principle dictates that the killer should be disqualified as an estate or life insurance policy beneficiary of the murder victim. No conflict with the forfeiture principle arises because there is no forfeiture of property rights. At the time of the murder, the killer’s status as an estate or life insurance policy beneficiary was a mere expectancy not property.

In some circumstances, however, the result required by these two principles is more contentious. Consider the recent decision of the High Court of Ireland in Cawley v. Lillis [2011] IEHC 515.

The case involved a husband
convicted of the manslaughter of
his wife. The issue was how to
deal with properties held by the
couple in joint tenancy. Should
they pass by right of survivor-
ship to the husband, even though
he killed his wife?
Allowing the right of survivor-
ship to operate in favour of the
husband would violate the bene-
fit principle because this would
result in the husband acquiring
through criminal means
his wife’s share of all
properties held by them
in joint tenancy.
Following an Ontario
case, Schobelt v. Barber
(1966) 60 D.L.R. (2d)
519, the court in Cawley
concluded the joint ten-
ancies were severed in
equity but not common
law. The result was that
the wife’s legal title passed on her
death to the husband but he held
her share as a constructive trustee
for her estate.
The decision in Cawley gener-
ally achieves the “property neu-
tral” outcome required by the
benefit and forfeiture principles,
but it is not free of controversy.

One concern raised before the court in Cawley is that severing the equitable joint tenancies could be said to violate the forfeiture principle. Since severance results in the husband losing his right of survivorship, one might say it is tantamount to the forfeiture of a pre-existing property right.

The problem with this argument is that it misconstrues the nature of a joint tenant’s right of survivorship: It is not an indestructible property right but rather a fragile right that could be defeated at any time by one joint tenant without the consent of the other.

Since the wife in Cawley was free at any time to sever the joint tenancies and thereby defeat her husband’s right of survivorship, this right is in a sense analogous to the expectancy of an estate or life insurance beneficiary. Viewing the right of survivorship in

ADAM
PARACHIN

this light significantly diminishes the concerns raised regarding the forfeiture principle.

Another concern raised in Cawley was that severance in equity violates the benefit principle. It was argued that the husband (who was five years older than his wife) was likely to have predeceased his wife had he not killed her. So, everything else remaining equal, the jointly held properties would likely have ultimately passed by right of survivorship to the wife, leaving nothing for the husband’s estate. Severance is a comparatively favourable outcome to the husband because it affords him the right to devise his share of the jointly held properties to heirs through a last will and testament.

The flaw with this argument is that it compares the position of the husband under severance to the position he likely would have ultimately found himself at some remote point in the future had he not killed his wife. This is the wrong benchmark to compare against. The proper benchmark is arguably the husband’s position immediately prior to killing his wife.

Severance does not necessarily improve the position of the husband relative to his position prior to killing his wife. Severance is superior to his position at that time only in the sense that it protects him from losing everything should he die first. But it is inferior in the sense that it prohibits him from gaining everything should his wife die first. Since, prior to the husband killing his wife, it was not clear who would die first, it is by extension not clear that severance leaves the husband in a comparably superior position relative to his position immediately before killing his wife.

The decision in Cawley illustrates the difficult questions that arise when joint tenants kill. These difficulties only intensify where a murder occurs among three or more joint tenants. A bright line statutory rule to govern these situations may not be a bad idea. n

There are two guiding principles: No person should benefit from a criminal act; and the rules of property law should not require that a person forfeit pre-existing property rights as punishment for committing a crime.

“

Adam Parachin, Faculty of Law, University of Western Ontario

Adam Parachin is an associate professor at the Faculty of Law at the University of Western Ontario where he researches, teaches and writes in the field of trusts, estates and charities law.