Ms Marie Baker:

We thought of this as being a relatively short report. A number of discrete issues seem to have been identified in the context of the Succession Act 1965. The general view is that it works reasonably well, but in the recent past, a number of discrete issues have been raised in litigation. One arose in the context of what should happen to jointly owned property, property held under joint tenancies, when the co-owner has unlawfully killed his or her co-owner. There is a decision of Miss Justice Mary Laffoy to the effect that the co-ownership rights, being property rights or whatever, would continue notwithstanding the unlawful killing but that there would be deemed by the court to be a constructive trust for one half share. It is a very technical, complex question which raises questions of property rights, the meaning of joint tenancy, the meaning of succession etc. It would be a discrete question. Miss Justice Laffoy, in the course of her judgement, identified the need for clarity in the legislation as to what should happen and we had a number of requests on that topic, so it seems worthwhile to include it in a review of the Succession Act. It is not proposed that the entire succession scheme be reviewed but that a number of issues be identified.

Another anomalous situation was identified recently in another case, namely, the admissibility of a conviction of murder regarding an application under section 120 of the Succession Act which allows the court to declare somebody to be unworthy to succeed. One kills one's spouse, one is convicted of murder or manslaughter, but one is not necessarily excluded from inheritance on intestacy or under intestate succession. Section 120 of the Act has four or five subsections. Mr. Justice Nicholas Kearns recently identified a difference in the wording between subsections (1) and (4) as giving rise to this problem. Is the conviction admissible in a civil trial? Is it hearsay evidence? Clearly, it is. Is it admissible? What weight is to be given to it? Is it to be conclusive evidence of the fact of unlawful killing or prima facie evidence? Can one re-try the question again? That is a fairly discrete issue but seems to deserve some inquiry and we would not think of it as taking a very long time.

Those two issues arose from particular cases where the points were raised by the courts, but another issue arose in the context of our consultation process. Section 117 of the Succession Act allows the child of a testator to come to court to seek provision to be made. If it can be shown that proper provision was not made for the child, the court can make proper provision and the court is at large as to how it makes that provision. The original 1960 Act provided for a 12 month time limit, but that was reduced in 1995 to six months and there is no availability under the legislation for an extension of time. In the UK, there is the possibility of applying to the court in exceptional circumstances for an extension of time.

A number of persons who wrote to us following our consultation process suggested that perhaps that was harsh and needed to be examined to determine whether there are circumstances where the court could grant an extension of time. A period of six months is very short. The legislation was designed to ensure an estate can be administered with due expedition. We do not want people coming back ten years later, but perhaps six months might cause some harshness or unfair results in certain circumstances.

Another interesting and perhaps discrete question that was identified by somebody who wrote to us was an issue that has arisen following the enactment of the civil partnership legislation. On the death intestate of a married person, the children automatically receive one third, but on the death intestate of a civil partner, the child of the civil partner may seek more and may go to court for a declaration for whatever percentage the court decides is appropriate. A number of people who wrote in suggested to us that this perhaps creates an anomalous distinction. It may or may not be a deliberate distinction that deserves to be drawn but it certainly bears examining. We thought of the Succession Act project as comprising relatively discrete topics, but this legislation is almost 50 years old. Some examination of it would not go astray and there were a number of requests from members of the legal profession on issues that arose.